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tNORTH CAROLINA

IN THIS ISSUE

EXECUTIVE ORDERS

IN ADDITION

Tax Review Board

PROPOSED RULES
Commerce

Environment, Health, and Natural Resources
Human Resources
Secretary of State
State Personnel

TITUl

tiohI

RRC OBJECTIONS

CONTESTED CASE DECISIONS

ISSUE DATE: July 1, 1994

Volume 9 • Issue 7 • Pages 412 - 503

INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE

NORTH CAROLINA REGISTER

The North Carolina Register is published twice a month and
contains information relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the General
Statutes. All proposed administrative rules and notices of public
hearings filed under G.S. 150B-21 .2 must be published in the Register.
The Register will typically comprise approximately fifty pages per
issue of legal text.

State law requires that a copy of each issue be provided free of
charge to each county in the state and to various state officials and
institutions.

The North Carolina Register is available by yearly subscription at
a cost of one hundred and five dollars ($105.00) for 24 issues.
Individual issues may be purchased for eight dollars ($8.00).

Requests for subscription to the North Carolina Register should be
directed to the Office of Administrative Hearings, P. O. Drawer 27447,
Raleigh, N.C. 27611-7447.

ADOPTION, AMENDMENT, AND REPEAL OF
RULES

The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A of Chapter 1 50B
of the General Statutes.

Any agency intending to adopt, amend, or repeal a rule must first
publish notice of the proposed action in the North Carolina Register.
The notice must include the time and place of the public hearing (or
instructions on how a member of the public may request a hearing); a
statement of procedure for public comments; the text of the proposed
rule or the statement of subject matter; the reason for the proposed
action; a reference to the statutory authority for the action and the
proposed effective date.

Unless a specific statute provides otherwise, at least 15 days must
elapse following publication of the notice in the North Carolina
Register before the agency may conduct the public hearing and at least
30 days must elapse before the agency can take action on the proposed
rule. An agency may not adopt a rule that differs substantially from the
proposed form published as part of the public notice, until the adopted
version has been published in the North Carolina Register for an
additional 30 day comment period.

When final action is taken, the promulgating agency must file the
rule with the Rules Review Commission (RRC). After approval by
RRC, the adopted rule is filed with the Office of Administrative
Hearings (OAH).

A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative Hearings
for publication in the North Carolina Administrative Code (NCAC).

Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agency or before
filing with OAH for publication in the NCAC.

TEMPORARY RULES

Under certain emergency conditions, agencies may issue tempo-
rary rules. Within 24 hours of submission to OAH, the Codifier of
Rules must review the agency's written statement of findings of need
for the temporary rule pursuant to the provisions in G.S. 150B-21.1. If
the Codifier determines that the findings meet the criteria in G.S.
150B-21.1, the rule is entered into the NCAC. If the Codifier
determines that the findings do not meet the criteria, the rule is returned
to the agency. The agency may supplement its findings and resubmit
the temporary rule for an additional review or the agency may respond
that it will remain with its initial position. The Codifier, thereafter, will
enter the rule into the NCAC. A temporary rule becomes effective
either when the Codifier of Rules enters the rule in the Code or on the
sixth business day after the agency resubmits the rule without change
The temporary rule is in effect for the period specified in the rule or 1 80
days, whichever is less. An agency adopting a temporary rule must
begin rule-making procedures on the permanent rule at the same time
the temporary rule is filed with the Codifier.

NORTH CAROLINA ADMINISTRATIVE CODE

The North Carolina Administrative Code (NCAC) is a compilation
and index of the administrative rules of 25 state agencies and 38
occupational licensing boards. The NCAC comprises approximately
15,000 letter size, single spaced pages of material of which approxi-
mately 35% is changed annually. Compilation and publication of the
NCAC is mandated by G.S. 150B-21.18.

The Code is divided into Titles and Chapters. Each state agency i<
assigned a separate title which is further broken down by chapters
Title 21 is designated for occupational licensing boards.

The NCAC is available in two formats.

(1) Single pages may be obtained at a minimum cost of fwc
dollars and 50 cents ($2.50) for 10 pages or less, plus fifteei
cents ($0.15) per each additional page.

(2) The full publication consists of 53 volumes, totaling ii
excess of 15,000 pages. It is supplemented monthly witl
replacement pages. A one year subscription to the fill
publication including supplements can be purchased fo
seven hundred and fifty dollars ($750.00). Individual vol
umes may also be purchased with supplement service. Re
newal subscriptions for supplements to the initial publicatioi
are available.

Requests for pages of rules or volumes of the NCAC should b
directed to the Office of Administrative Hearings.

CITATION TO THE NORTH CAROLINA
REGISTER

The North Carolina Register is cited by volume, issue, |
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volum
1, Issue 1, pages 101 through 201 oftheNorthCarolinaRegisterissue
on April 1, 1986.

FOR INFORMATION CONTACT: Office of Administra-
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447,
Raleigh, North Carolina 2761 1-7447, (919) 733-2678.

NORTH
CAROLINA
REGISTER

ISSUE CONTENTS

I. EXECUTIVE ORDERS

Executive Orders 50-52

412

n. IN ADDITION

Tax Review Board

415

Office of Administrative Hearings

P. O. Drawer 27447

Raleigh, North Carolina 27611-7447

(919) 733-2678

Julian Mann III,

Director
James R. Scarcella Sr.,

Deputy Director
Molly Masich,

Director ofAPA Services

Staff:

Ruby Creech,

Publications Coordinator
Teresa Kilpatrick,

Editorial Assistant
Jean Shirley,

Editorial Assistant

This publication is printed on permanent,
acid-free paper in compliance with
G.S. 125-11.13.

m. PROPOSED RULES
Commerce

Alcoholic Beverage

Control Commission 423

Environment, Health, and
Natural Resources

Coastal Management 443

Health Services 445

Mining Commission 442

Human Resources

Facility Services 423

Medical Assistance 440

Mental Health, Developmental
Disabilities and Substance Abuse

Services 430

Vocational Rehabilitation

Services 434

Secretary of State

Securities Division 476

State Personnel
Office of State Personnel 477

IV. RRC OBJECTIONS 479

V. CONTESTED CASE DECISIONS

Index to ALJ Decisions 484

Text of Selected Decisions

93 DST 1054 490

94 EHR 0329 496

VI. CUMULATIVE INDEX 502

NORTH CAROLINA REGISTER

Publication Schedule

(April 1994 - January 1995)

Volume
and
Issue

Number

Issue
Date

Last Day

for

Filing

Last Day
for Elec-
tronic
Filing

Earliest

Date for

Public

Hearing

15 days

from

notice

* End of

Required

Comment

Period

30 days

from

notice

Last Day

to Submit

toRRC

** Earliest

Effective

Date

9:1

04/04/94

03/11/94

03/18/94

04/19/94

05/04/94

05/20/94

07/01/94

9:2

04/15/94

03/24/94

03/31/94

05/02/94

05/16/94

05/20/94

07/01/94

9:3

05/02/94

04/11/94

04/18/94

05/17/94

06/01/94

06/20/94

08/01/94

9:4

05/16/94

04/25/94

05/02/94

05/31/94

06/15/94

06/20/94

08/01/94

9:5

06/01/94

05/10/94

05/17/94

06/16/94

07/01/94

07/20/94

09/01/94

9:6

06/15/94

05/24/94

06/01/94

06/30/94

07/15/94

07/20/94

09/01/94

9:7

07/01/94

06/10/94

06/17/94

07/18/94

08/01/94

08/22/94

10/01/94

9:8

07/15/94

06/23/94

06/30/94

08/01/94

08/15/94

08/22/94

10/01/94

9:9

08/01/94

07/11/94

07/18/94

08/16/94

08/31/94

09/20/94

11/01/94

9:10

08/15/94

07/25/94

08/01/94

08/30/94

09/14/94

09/20/94

11/01/94

9:11

09/01/94

08/11/94

08/18/94

09/16/94

10/03/94

10/20/94

12/01/94

9:12

09/15/94

08/24/94

08/31/94

09/30/94

10/17/94

10/20/94

12/01/94

9:13

10/03/94

09/12/94

09/19/94

10/18/94

11/02/94

11/21/94

01/01/95

9:14

10/14/94

09/23/94

09/30/94

10/31/94

11/14/94

11/21/94

01/01/95

9:15

11/01/94

10/11/94

10/18/94

11/16/94

12/01/94

12/20/94

02/01/95

9:16

11/15/94

10/24/94

10/31/94

11/30/94

12/15/94

12/20/94

02/01/95

9:17

12/01/94

11/07/94

11/15/94

12/16/94

01/03/95

01/20/95

03/01/95

9:18

12/15/94

11/22/94

12/01/94

12/30/94

01/17/95

01/20/95

03/01/95

9:19

01/03/95

12/08/94

12/15/94

01/18/95

02/02/95

02/20/95

04/01/95

9:20

01/17/95

12/21/94

12/30/94

02/01/95

02/16/95

02/20/95

04/01/95

This table is published as a public service, and the computation of time periods are not to be deemed binding
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule
6.

* An agency must accept comments for at least 30 days after the proposed text is published or until the date
of any public hearing, whichever is longer. See G.S. 150B-2 1.2(f) for adoption procedures.
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above,
that the Rules Renew Commission approves the rule at the next calendar month meeting after submission, and
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next
calendar month.

Raised 03/94

EXECUTIVE ORDERS

EXECUTIVE ORDER NO. 50

NORTH CAROLINA SPORTS

DEVELOPMENT COMMISSION

WHEREAS, the Department of Commerce is
charged with the duty of promoting and assisting
in the total economic development of North Caroli-
na; and

WHEREAS, sporting events represent an ex-
panding market with positive economic effects; and

WHEREAS, it is the duty of the Sports Develop-
ment office to develop and promote efforts to
recruit sporting events, sporting franchises, and
training centers to North Carolina; and

WHEREAS, an advisory commission to advise,
assist, and support the Sports Development Office
and the Department of Commerce in matters
involving sports development initiatives is neces-
sary.

NOW, THEREFORE, by the power vested in me
as Governor by the laws and Constitution of North
Carolina, IT IS ORDERED:

Section 1. Establishment.

There is hereby established the North Carolina
Sports Development Commission.

Section 2. Membership.

The Governor shall appoint the members of the
Commission. The Commission shall consist of 20
members. Members shall be representatives of
sports agencies and organizations, government
entities, the business community, or individuals
who have an interest in sports development.

Section 3. Terms.

All members shall serve four year terms at the
pleasure of the Governor.

Section 4. Officers.

The Governor shall designate a Chair from the
membership to serve at his pleasure. The Com-
mission shall elect any other officers it deems
necessary. Vacancies in any office shall be filled
for the unexpired term by the original appointing
authority.

Section 5. Meetings.

The Commission shall meet at least quarterly. A
quorum shall consist of a majority of the current
Commission membership.

Section 6. Administrative Su pport
and Expenses.

(a) The staff of the Sports Development Office
shall provide administrative support to the Com-
mission. A Sports Development Office staff
member shall serve as Administrator to the Com-
mission. Permanent records of all Commission
business shall be maintained in the Sports Devel-
opment Office and shall be the responsibility of the
Administrator.

(b) Members of the Commission shall receive
travel and subsistence expenses, when available,
from Department of Commerce funds, pursuant to
N.C.G.S. 138-5.

Section 7. Duties and Powers.

The Commission shall perform such duties as
assigned by the Governor. It shall have the fol-
lowing specific duties, powers, and functions:

(1) assist the Sports Development Office in
planning and implementation of sports
development initiatives;

(2) act as spokesperson for the State of North
Carolina in its efforts to attract sports
activities;

(3) assist in the creation and updating of
directories containing the following infor-
mation:

A. current sporting events being held in
our State;

B. facilities available for sporting events in
our State; and

C. available sporting events and bid dead-
lines;

(4) assist the Sports Development Office in
forming a partnership with the governing
associations of sporting activities, the
North Carolina business community,
individuals who conduct major and minor
sporting events, and key facility manag-
ers in our state;

(5) assist in project promotion; and

(6) advise and assist in the development of
future goals and objectives for the Sports
Development Office.

The Commission's role shall be advisory in
nature. All decisions regarding the adoption of
policies shall be the responsibility of the Secretary
of the Department of Commerce and the Sports
Development Office.

Section 8. Annual Report.

The Commission shall report annually to the
Governor regarding the progress of sports develop-
ment in North Carolina.

9:7

NORTH CAROLINA REGISTER

July 1, 1994

412

EXECUTIVE ORDERS

Section 9. Effect on Other Executive Orders.

Executive Order Number 109, as amended by
Executive Order Number 161, of the Martin
Administration is hereby rescinded.

This Executive Order shall be effective immedi-
ately.

Done in the Capital City of Raleigh, North
Carolina, this the 1st day of June, 1994.

EXECUTIVE ORDER NO. 51
NORTH CAROLINA FILM COUNCIL

By the authority vested in me as Governor by the
Constitution and laws of North Carolina, IT IS
ORDERED:

Section 1. Establishment.

The North Carolina Film Council is hereby
established.

Section 2. Duties.

The Council shall have the following duties and
functions:

(a) Advise the Governor on matters that
would enhance the likelihood of the film
industry choosing North Carolina for
filmmaking.

(b) Advise the Secretary of Commerce and
the Film Division in the Department of
Commerce on film-making activities
within North Carolina.

(c) Serve as a forum for film-making con-
cerns and recommendations relating to
the film industry in North Carolina that
would include, but not be all inclusive of,
the following:

(1) Compile a database registry of locations
within North Carolina that would be
potential sites for filmmaking;

(2) Develop the financial capability of
North Carolina to support projects with
local financing of the film industry;

(3) Develop a support network for produc-
tion activities relating to the film indus-
try;

(4) Develop a manual for the use of local
governments and municipalities detail-
ing supportive activities that would
facilitate filmmaking in their communi-
ties;

(5) Assist in the support and coordination
of the activities of local film commis-
sions in North Carolina;

(6) Provide advice on projects directly
assigned by the Governor to the Coun-
cil;

(7) Assist with recruitment of the film
industry to select North Carolina sites
for filmmaking; and

(8) Develop an annual report on the eco-
nomic impact of the film-making indus-
try in North Carolina, along with rec-
ommendations to increase the film-
making activities within North Caroli-
na.

Section 3. Membership.

The Council shall consist of 25 voting members
who shall be appointed by the Governor as fol-
lows:

(a) Five representatives of the film industry
within the state representing acting, production,
directing, producing, and film studio management.

(b) Five representatives of business and
industry.

(d) Twelve at-large members.

Section 4. Terms of Membership.

The terms of membership of the Council shall be
staggered so that the terms of approximately one-
third of the members shall expire in a single
calendar year. Eight members shall be designated
to serve initial terms of one year, eight to serve
initial terms of two years and nine members to
serve initial terms of three years. After the first
three years, all members shall be appointed for a
term of three years.

Section 5. Vacancies.

A vacancy occurring during a term of appoint-
ment is filled in the same manner as the original
appointment and for the balance of the unexpired
term.

Section 6. Travel Expenses.

Members of the Council shall receive necessary
travel and subsistence expenses, when available,
from Department of Commerce funds, pursuant to
N.C.G.S. 138-5.

Section 7. Officers.

The Chair and Vice Chair of the Council shall be
appointed by the Governor. The term of office of
the Chair and Vice Chair shall be two calendar
years. The Council may elect other such officers
as it deems necessary.

413

9:7

NORTH CAROLINA REGISTER

July 1, 1994

EXECUTIVE ORDERS

Section 8. Meetings.

The Council shall meet at least three times yearly
and at other times at the call of the Chair or upon
written request of at least ten of its members.

Section 9. Staff Assistance.

The Department of Commerce shall provide
clerical support and other services required by the
Council.

This Executive Order shall be effective immedi-
ately.

Done in the Capital City of Raleigh, North
Carolina, this the 10th day of June, 1994.

EXECUTIVE ORDER NO. 52

AMENDING EXECUTIVE ORDER

NUMBER 9 CONCERNING THE

COMMISSION FOR A COMPETITIVE

NORTH CAROLINA

By the authority vested in me as Governor by the
laws and Constitution of North Carolina, IT IS
ORDERED:

Section 2 of Executive Order Number 9 is
hereby amended to read:

Section 2. Membership.

The Commission shall consist of up to 55 mem-
bers appointed by the Governor. The membership
may include representatives of the private sector,
the nonprofit sector, local government, and the
North Carolina General Assembly.

Section 3. Effect on Other Executive Orders.

Executive Order Number 40, dated March 21,
1994 is hereby rescinded.

This Executive Order shall be effective immedi-
ately.

Done in Raleigh, North Carolina, this the 10th
day of June, 1994.

9:7 NORTH CAROLINA REGISTER July 1, 1994 414

IN ADDITION

STATE OF NORTH CAROLINA
COUNTY OF WAKE

BEFORE THE TAX REVIEW BOARD

In the matter of:

The Proposed Assessment of installment paper dealer
tax against Ford Motor Credit Company for the
period 1 October 1986 through 30 June 1989.

ADMINISTRATIVE
DECISION NUMBER:

282

THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax
Review Board at its regular meeting in the City of Raleigh on 24 March 1994, upon the petition of Ford
Motor Credit Company for review of a Final Decision of the Deputy Secretary of Revenue entered 27
August 1992 sustaining a proposed assessment of installment paper dealer tax for the period 1 October 1986
through 30 June 1989;

AND IT APPEARING TO THE BOARD that the findings of fact made by the Deputy Secretary of
Revenue were fully supported by competent evidence of record, that the conclusions of law made by the
Deputy Secretary were fully supported by the findings of fact, and that the decision by the Deputy Secretary
was fully supported by the conclusions of law;

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary of Revenue is
confirmed in every respect.

Entered this the 14th day of June, 1994.

TAX REVIEW BOARD

Harlan E. Boyles, Chairman
State Treasurer

Jeff D. Batts

Note: Dr. John E. Thomas, Chairman of the Utilities Commission on the date of the hearing in this matter,
participated in the hearing but did not participate in the Board's subsequent decision because, as of the date
of the meeting at which this matter was decided, he no longer held the office of Chairman of the Utilities
Commission and therefore was no longer an ex officio member of the Tax Review Board.

415

9:7

NORTH CAROLINA REGISTER

July 1, 1994

IN ADDITION

STATE OF NORTH CAROLINA
COUNTY OF WAKE

In the matter of:

The Proposed Assessment of additional sales and

use tax for the period 1 February 1987 through 31

January 1990 by the Secretary of Revenue of North

Carolina against Advanced Micrographic Support,

Inc.

BEFORE THE TAX REVIEW BOARD

ADMINISTRATIVE
DECISION NUMBER: 283

THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax
Review Board (and before Dr. John E. Thomas, at that time Chairman of the Utilities Commission and ex
officio member of the Board) at its regular meeting in the City of Raleigh on 21 December 1993, upon the
petition of Advanced Micrographic Support, Inc. [hereinafter "Petitioner"] for review of a Final Decision
of the Deputy Secretary of Revenue issued 4 March 1992 waiving the negligence penalty and sustaining a
proposed assessment of additional sales and use tax for the period 1 February 1987 through 31 January 1990.

Findings of Fact

THE TAX REVIEW BOARD, having reviewed the Petition, briefs, and record filed in this matter,
adopts the Findings of Fact contained in the Final Decision of the Deputy Secretary in this matter and makes
the following additional Findings of Fact:

1 . The Petitioner is engaged in the business of providing services to its customers in the form
of consulting, developing software programs, formatting and imaging, and data processing.
The Petitioner's primary service consists of processing raw data from its customers in order
to put this data into a more useful format.

2. Most of the services provided by the Petitioner are in the nature of data processing. The
Petitioner delivers the results of its services to its customers through storage media; however,
the delivery of storage media is merely a means by which the results of the Petitioner's
services are delivered.

3. The Petitioner's charges to its customers are charges for services, not sales of tangible
personal property.

Conclusions of Law

THE TAX REVIEW BOARD, having reviewed the Petition, briefs, and record filed in this matter,
based on the Findings of Fact made by the Deputy Secretary and on its own Findings of Fact set out above,
makes the following Conclusions of Law:

1 . At all material times the Petitioner was engaged in the business of providing data processing
services to its customers. The Petitioner delivered the results of its services to its customers
by means of storage media.

2. The total charges to Petitioner's customers at issue herein were charges for services such as
organizing, preparing, programming, filming, and processing customer data. No portion of
the charges at issue represent sales of tangible personal property subject to North Carolina
sales and use tax.

9:7 NORTH CAROLINA REGISTER July 1, 1994 416

IN ADDITION

Decision

IT APPEARING TO THE BOARD, as set forth above, that the Petitioner is engaged in the business
of providing data processing services to its customers; and it further appearing that no part of the charges at
issue were charges for sales of tangible personal property;

IT IS THEREFORE ORDERED that the proposed assessment of additional sales and use tax against
the Petitioner is Reversed.

Entered this the 14th day of June, 1994.

TAX REVIEW BOARD

Harlan E. Boyles, Chairman
State Treasurer

Jeff D. Batts

417 9:7 NORTH CAROLINA REGISTER July 1, 1994

IN ADDITION

STATE OF NORTH CAROLINA
COUNTY OF WAKE

BEFORE THE TAX REVIEW BOARD

)
In the matter of: )

The Proposed Assessment of additional sales and )

use tax for the period 1 February 1988 through 31 ) ADMINISTRATTVE

March 1991 by the Secretary of Revenue of North ) DECISION NUMBER: 284

Carolina against Performance Bicycle Shop, Inc. )

)

THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax
Review Board (and before Dr. John E. Thomas, at that time Chairman of the Utilities Commission and ex
officio member of the Board) at its regular meeting in the City of Raleigh on 24 March 1994, upon the
petition of Performance Bicycle Shop, Inc. [hereinafter "Petitioner"] for review of a Final Decision of the
Deputy Secretary of Revenue issued 4 January 1993 waiving the negligence penalty and sustaining a proposed
assessment of additional sales and use tax for the period 1 February 1988 through 31 March 1991.

Findings of Fact

1. The Petitioner is engaged in the sale of bicycles and bicycle accessories.

2. The Petitioner operates a retail store in Carrboro, North Carolina. The Petitioner also
operates, from its Carrboro, North Carolina location, an extensive catalog retail sales
business. The customers of the catalog business are located in virtually every part of the
United States, and perhaps in foreign countries. Some catalog customers are located in the
State of North Carolina.

3 . The vast majority of the Petitioner's catalogs are shipped directly from the Petitioner's printer
in Spartanburg, South Carolina, to recipients, and are therefore not at issue.

4. The matter before the Board concerns the application of North Carolina sales and use tax to
catalogs which are shipped from the Spartanburg printer to the Petitioner's Carrboro business
facilities. These catalogs are used by the Petitioner for three purposes: (1) package inserts -
when the Petitioner mails a product to a customer, the Petitioner places a catalog in the box
with the product in an effort to stimulate additional sales; (2) response to telephone requests
for catalogs - when a potential customer calls the Petitioner to request a catalog, the
Petitioner mails the catalog from its Carrboro facility; and (3) available to be given to
customers who visit the Petitioner's retail facility in Carrboro.

5. The Petitioner concedes (and the Board concurs) that all catalogs used for the third purpose
in the preceding paragraph are properly subject to North Carolina sales and use tax. As to
the first two purposes, the Petitioner agrees (and, again, the Board concurs) that all catalogs
actually delivered to North Carolina residents are subject to North Carolina sales and use tax.
However, North Carolina residents receive only a very small percentage of catalogs mailed
out for these purposes. The critical question is the tax treatment of catalogs mailed to out-of-
State customers and potential customers.

9:7 NORTH CAROLINA REGISTER July 1, 1994 418

IN ADDITION

6. After carefully considering the nature of the Petitioner's business, the Board finds that the
Petitioner consistently mails the vast majority of the catalogs falling into the first two
categories above to customers or potential customers located in states other than North
Carolina. When the Petitioner has catalogs delivered to its North Carolina location, the
Petitioner has the original and continuing intent to deliver approximately 95% of these
catalogs to customers and potential customers located out-of-state.

7. The Petitioner sends catalogs falling into the first two categories above to out-of-state
customers and potential customers free of charge, for the purpose of generating sales of
bicycles and bicycle accessories.

8. The percentage of catalogs shipped out-of-state from the Petitioner's North Carolina facility
changed little during the years under consideration. The Petitioner typically stores catalogs
for no more than two or three months, because the Petitioner prints five catalogs per year.
It is reasonable for the Petitioner to anticipate, based on past experience, that the vast
majority of catalogs stored in its North Carolina facility will be shipped out-of-state.

Conclusions of Law

1 . All catalogs stored by the Petitioner in North Carolina and used for the purpose of direct
distribution to customers of the Petitioner's retail store in Carrboro, North Carolina are
subject to North Carolina sales and use tax.

2. As to those catalogs stored by the Petitioner in North Carolina and used by the Petitioner
either as package inserts or as mail-outs in response to telephone requests, all catalogs
shipped to North Carolina recipients are subject to North Carolina sales and use tax.

3. As to these catalogs stored by the Petitioner in North Carolina and used by the Petitioner
either as package inserts or as mail-outs in response to telephone requests, catalogs actually
shipped to out-of-state recipients fall within the "storage and use" exclusion (see G.S. 105-
164.3(19)) and are not subject to North Carolina sales and use tax. The Board takes
particular notice that the percentage of catalogs shipped out-of-state from the Petitioner's
North Carolina facility changed little during the years under consideration. The Board
therefore concludes as a matter of law that the Petitioner purchases catalogs for delivery to
its North Carolina location with the original purpose of continuing its past business practice
of sending most of these catalogs out-of-state. The burden is on the Petitioner, of course,
to show how the catalogs received in its Carrboro location are actually used.

4. Addressing one additional point raised by the Department, the Board concludes that catalogs
shipped out-of-state by the Petitioner as package inserts or in response to telephone requests
are used by the Petitioner in the states where the catalogs are received. The catalogs are
promotional and advertising materials of the Petitioner, delivered by the Petitioner to past
customers and potential future customers for the purpose of generating sales. Such delivery
constitutes use of the catalogs by the Petitioner in other states.

Decision

IT APPEARING TO THE BOARD, as set forth above, that catalogs stored by the Petitioner at its
North Carolina facility for shipment and use out-of-state and actually used out-of-state meet the "storage and
use" exclusion;

419 9:7 NORTH CAROLINA REGISTER July 1, 1994

IN ADDITION

IT IS THEREFORE ORDERED that the proposed assessment of additional sales and use tax against
the Petitioner be revised to reflect the Findings and Conclusions of the Board set forth herein, and that the
Final Decision of the Deputy Secretary in this matter is Modified accordingly.

Entered this the 14th day of June, 1994.

TAX REVIEW BOARD

Harlan E. Boyles, Chairman
State Treasurer

Jeff D. Batts

Note: Dr. John E. Thomas, Chairman of the Utilities Commission on the date of the hearing in this matter,
participated in the hearing and in the Board's unanimous decision, but did not sign this order because, as of
the date of entry of this written decision, he no longer held the office of Chairman of the Utilities Commission
and therefore was no longer an ex officio member of the Tax Review Board.

9:7 NORTH CAROLINA REGISTER July 1, 1994 420

IN ADDITION

STATE OF NORTH CAROLINA
COUNTY OF WAKE

BEFORE THE TAX REVIEW BOARD

In the matter of:

The Denial of Refunds for the tax years 1979,
1980, 1981, 1982, and 1983 by the Secretary of
Revenue against Charles R. Brown.

ADMINISTRATIVE
DECISION NUMBER:

285

THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax
Review Board at its regular meeting in the City of Raleigh on 24 March 1994, upon the petition of Charles
R. Brown for review of a Final Decision of the Deputy Secretary of Revenue entered 24 August 1992 denying
requests for refunds of taxes, penalties, and interest for the tax years 1979, 1980, 1981, 1982, and 1983.

Addressing first the Taxpayer's motion that this matter be remanded to the Secretary of Revenue, the
Board finds that the Taxpayer has had ample opportunity, in two hearings before the Deputy Secretary of
Revenue, to present any relevant and material evidence. The Taxpayer has not asserted the existence of
relevant and material evidence which could not, with due diligence, have been presented at the hearing before
the Deputy Secretary from which the Taxpayer has petitioned for review. The Taxpayer's motion for remand
is therefore DENIED;

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary of Revenue is

confirmed in every respect.

Entered this the 14th day of June, 1994.

TAX REVIEW BOARD

Harlan E. Boyles, Chairman
State Treasurer

Jeff D. Batts

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IN ADDITION

STATE OF NORTH CAROLINA
COUNTY OF WAKE

BEFORE THE TAX REVIEW BOARD

In the matter of:

The Proposed Assessments of income tax withheld

or required to be withheld for the months of May

and June, 1989, by Secretary of Revenue of North

Carolina against Morton B. Morgans tern,

Taxpayer.

ADMINISTRATIVE
DECISION NUMBER:

286

THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax
Review Board at its regular meeting in the City of Raleigh on 24 March 1994, upon the petition of Morton
B. Morganstern for review of a Final Decision of the Deputy Secretary of Revenue entered 26 June 1992
sustaining proposed assessments of tax withheld or required to have been withheld for the months of May and
June, 1989 and declaring said assessments to be immediately due and payable;

IT IS THEREFORE ORDERED that the Final Decision of the Deputy Secretary of Revenue is
confirmed in every respect.

Entered this the 14th day of June, 1994.

TAX REVIEW BOARD

Harlan E. Boyles, Chairman
State Treasurer

Jeff D. Batts

Note: Dr. John E. Thomas, Chairman of the Utilities Commission on the date of the hearing in this matter,
participated in the hearing and in the Board's unanimous decision, but did not sign this Order because, as of
the date of entry of this written decision, he no longer held the office of Chairman of the Utilities Commission
and was therefore no longer an ex officio member of the Tax Review Board.

9:7

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422

PROPOSED RULES

TITLE 4 - DEPARTMENT OF
COMMERCE

Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Alcoholic
Beverage Control Commission intends to adopt
rule cited as 4 NCAC 2T .0103.

1 he proposed effective date of this action is
October 1, 1994.

1 he public hearing will be conducted at 10:00
a.m. on August 12, 1994 at the ABC Commission,
Hearing Room 101, 3322 Garner Road, Raleigh,
NC 27610.

Ixeason for Proposed Action: Petition for adop-
tion of rule received from N.C. Beer Wholesalers'
Association. Purpose of Rule is to define term
"brand" as used by malt beverage wholesale
distribution industry, and to codify Commission's
traditional interpretation of the term for the pur-
pose of administering the Beer Franchise Law.

(comment Procedures: Written comments should
be received by the Commission no later than
August 5, 1994. Persons may also present oral
comments at the hearing on August 12, 1994.
Persons wishing to speak at the hearing are re-
quested to contact Ann S. Fulton, General Coun-
sel, prior to the hearing, at (919) 779-0700 No
written or verbal comment will be received or
considered after the hearing on August 12, 1994.

CHAPTER 2 - ALCOHOLIC
BEVERAGE CONTROL COMMISSION

SUBCHAPTER 2T - INDUSTRY MEMBERS:
RETAIL/INDUSTRY: MEMBER
RELATIONSHIPS: SHD? CHANDLERS:
Am CARRD2RS: FUEL ALCOHOL

SECTION .0100 - DEFINITIONS:
APPLICATION PROCEDURES

.0103 BEER FRANCHISE LAW;
"BRAND" DEFINED

For purposes of Article 13 of Chapter 18B. the
Beer Franchise Law, a distribution agreement
between a supplier and wholesaler applies to all
products distributed by the supplier under the same
brand name. Different categories of products
manufactured and marketed under a common
identifying trade name, such as the name of the
brewery, are considered to be the same brand:
e.g.. the "Old Faithful " brand would include "Old
Faithful". "Old Faithful Light". "Old Faithful
Draft". "Old Faithful Dry" and other products
identified principally by and relying upon the "Old
Faithful" name. Differences in packaging, such as
different style, type or size of container, do not
establish different brands.

Statutory Authority G.S. 18B-207; 18B-1 303(a).

TITLE 10 - DEPARTMENT OF HUMAN RESOURCES

l\otice is hereby given in accordance with G.S. 150B-21.2 that the Division of Facility Services intends to
amend rules cited as 10 NCAC 3R .3020, .3030.

1 he proposed effective date of this action is October 1, 1994.

1 he public hearing will be conducted at 10:00 a.m. on August 4, 1994 at the Council Building, Room 201,
701 Barbour Drive, Raleigh, North Carolina 27603.

Ixeason for Proposed Action: To adopt as permanent rules the temporary rule adopted June 7, 1994, which
amends the Certificate of Need review schedule and the facility and service need determinations set forth in
the 1994 State Medical Facilities Plan.

423

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PROPOSED RULES

Ksomment Procedures: All written comments must be submitted to Jackie Sheppard, APA Coordinator,
Division of Facility Services, P.O. Box 29530, Raleigh, NC 276264530 no later than August 4, 1994. Oral
comments may be made at the hearing.

h/ditor's Note: These Rules were filed as temporary amendments effective June 7, 1994 for a period of
180 days or until the permanent rule becomes effective, whichever is sooner.

CHAPTER 3 - FACILITY SERVICES

SUBCHAPTER 3R - CERTIFICATE OF NEED REGULATIONS

SECTION .3000 - STATE MEDICAL FACILITIES PLAN

.3020 CERTIFICATE OF NEED REVffiW SCHEDULE

The agency has established the following schedule for review of categories and subcategories of facilities
and services in 1994:
(1) Category B. Subcategory Long-Term Nursing Facilities.

CON Beginning

County

HSA

Review Date

Brunswick

April 1, 1994

Pender

April 1, 1994

Greene

April 1, 1994

Lincoln

III

September 1, 1994

(2) Category C. Subcategory Intermediate Care Facilities for Mentally Retarded.

CON Beginning

Counties

HSA

Review Date

Buncombe, Madison, Mitchell

Yancey

June 1, 1994

Gaston, Lincoln

III

November 1, 1994

Rowan, Iredell, Davie

III

May 1, 1994

Orange, Person, Chatham

May 1, 1994

Halifax

December 1, 1994

Pitt

December 1, 1994

Beaufort, Washington, Tyrrell,

Hyde, Martin

June 1, 1994

Pasquotank, Chowan, Perquimans, Camden,
Dare, Currituck

June 1, 1994

(3) Category D. Subcategory End Stage Renal Disease Dialysis Stations. Dialysis station review shall
be conducted under the provisions of 10 NCAC 3R .3032.

(4) Category H. Subcategory Home Health Agencies or Offices.

NORTH CAROLINA REGISTER

July 1, 1994

424

PROPOSED RULES

County

HSA

CON Beginning
Review Date

Iredell

III

July 1, 1994

Mecklenburg

III

February 1, 1994

Durham

February 1, 1994

Cumberland

February 1, 1994

(5) If a need has been identified for any health service or facility in 10 NCAC 3R .3030, applications
for certificates of need for those services will be reviewed pursuant to the following review schedule,
unless another schedule has been specified in Items (1) - (4) of this Rule.

CON

BEGINNING
REVIEW
DATE

HSA I

HSA n

HSAIJJ

HSAIV

HSA V

HSA VI

January 1

February 1

B, G, I

A, G, E, H, I, J,
K

A, G, E, H,
K

March 1

B, G

April 1

A, G, E, H, J, K

B, G

May 1

C, G, F

June 1

A, C, G, F, D,
J, K

A, C, G, F, 1
I K

July 1

A, G, H, J, K

August 1

B, G, L

G, E, H

September 1

B, G, E, L

October 1

G, E, H

B, G, L

November 1

A, C, G, F, J, K

A, C. G, F, J, K

A, C, G, F, J, K

December 1

A, C, D, G, F,
J, K

A, C, D, G, F,
J,K

A, C, D, G,
J, K

Statutory Authority G.S. 1 31 E-l 76(25); 131E-177(1); 1 31 E-l 83(b).

.3030 FACILITY AND SERVICE NEED DETERMINATIONS

Facility and service need determinations are shown in Items (1) - (16) of this Rule. The need determinations
shall be revised continuously throughout 1994 pursuant to 10 NCAC 3R .3040.

(1) Category A. Acute Health Service Facilities. It is determined that there is no need for additional
acute care beds and no reviews are scheduled.

(2) Category B. Long-Term Nursing Facility Beds.

Number of Nursing

County

HSA

Beds Needed

Brunswick

Pender

Greene

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PROPOSED RULES

County

HSA

Number of Nursing
Beds Needed

Lincoln

III

(3) Category C.

(a) Psychiatric Facility Beds. It is determined that there is no need for additional psychiatric beds and
no reviews are scheduled.

(b) Intermediate Care Facilities for Mentally Retarded Beds.

Counties

HSA

Need

Determination

Child

Adult

Buncombe, Madison, Mitchell, Yancey

Gaston, Lincoln

III

Rowan, Iredell, Davie

III

Orange, Person, Chatham

Halifax

Pitt

Beaufort, Washington, Tyrrell, Hyde,
Martin

Pasquotank, Chowan, Perquimans,
Camden, Dare, Currituck

(c) Chemical Dependency Treatment Beds. It is determined that there is no need for additional
chemical dependency treatment beds and no reviews are scheduled.

(4) Category D. End-Stage Renal Disease Treatment Facilities. Need for end-stage renal dialysis
facilities or stations is determined as is provided in 10 NCAC 3R .3032.

(5) Category E. Inpatient Rehabilitation Facility Beds. It is determined that there is no need for
additional rehabilitation beds and no reviews are scheduled.

(6) Category F. Ambulatory Surgery Operating Rooms. It is determined that there is no need for
additional ambulatory surgery operating rooms and no reviews are scheduled, except that a Rural
Primary Care Hospital designated by the N.C. Office of Rural Health Services pursuant to Section
1820(f) of the Social Security Act may apply for a certificate of need to convert existing operating
rooms for use as a freestanding ambulatory surgical facility.

(7) Category H. New Home Health Agencies or Offices.

Number of Agencies

County

HSA

or Offices Needed

Iredell

III

Mecklenburg

III

Durham

Cumberland

(8) Category J. Open heart surgery services. It is determined that there is no need for additional open

NORTH CAROLINA REGISTER

July 1, 1994

426

PROPOSED RULES

(9)

(10)

(ID

(12)
(13)

(14)
(15)

(16)
(a)

heart surgery services and no reviews are scheduled; except that a health service facility that
currently provides these services may apply for a certificate of need to expand its existing services
to meet specific needs if utilization of the health service facility's existing open heart surgery services
exceeds 80 % of capacity.

Category J. Heart-Lung Bypass Machines. It is determined that there is no need for additional
heart-lung bypass machines and no reviews are scheduled; except that a health service facility that
currently provides open heart surgery services may apply for a certificate of need to acquire
additional heart-lung bypass machinery if the existing heart-lung machinery used by the health service
facility is utilized at or above 80% of capacity.

Category J. Cardiac Angioplasty Equipment. It is determined that there is no need for additional
cardiac angioplasty equipment and no reviews are scheduled; except that a health service facility that
currently provides cardiac angioplasty services may apply for a certificate of need to acquire
additional cardiac angioplasty equipment if utilization of cardiac angioplasty equipment used by the
health service facility exceeds 80% of capacity.

Category J. Cardiac Catheterization Equipment. It is determined that there is no need for additional
fixed or mobile cardiac catheterization equipment and no reviews are scheduled; except that a health
service facility that currently provides cardiac catheterization services may apply for a certificate of
need to acquire additional cardiac catheterization equipment if utilization of cardiac catheterization
equipment used by the health service facility exceeds 80% of capacity.

Category J. Solid organ transplant services shall be developed and offered only by academic medical
center teaching hospitals as designated in 10 NCAC 3R .3050(a)(3). It is determined that there is
no need for new solid organ transplant services and no reviews are scheduled.
Category J. Bone Marrow Transplantation Services. It is determined that allogeneic bone marrow
transplantation services shall be developed and offered only by academic medical center teaching
hospitals as designated in 10 NCAC 3R .3050(a)(3). It is determined that there is no need for
additional allogeneic or autologous bone marrow transplantation services and no reviews are
scheduled.

Category J. Gamma Knife Equipment. It is determined that there is no need for gamma knife
equipment and no reviews are scheduled.

Category J. Positron Emission Tomography Scanner. It is determined that there is no need for
additional positron emission tomography scanners for purposes other than research and no reviews
are scheduled.
Category L.
New Hospice Home Care Programs.

Number of New

Hospice Home Care

County

HSA

Programs Needed

Graham

McDowell

Swain

Cumberland

Robeson

Edgecombe

Hyde

Onslow

Wayne

(b) New Hospice Inpatient Beds (Single Counties). It is determined that the following single counties

427

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PROPOSED RULES

have a need for six or more new Hospice Inpatient Beds:

County

HSA

Number of New

Hospice Inpatient

Beds Needed

Forsyth
Guilford

Wake

II
H
IV

7
1

(c) New Hospice Inpatient Beds (Contiguous Counties). It has been determined that any combination
of two or more contiguous counties taken from the following list shall have a need for new hospice
inpatient beds if the combined bed deficit for the grouping of contiguous counties totals six or more
beds. Each county in a grouping of contiguous counties must have a deficit of at least one and no
more than five beds. The need for the grouping of contiguous counties shall be the sum of the
deficits in the individual counties. For purposes of this rule, "contiguous counties" shall mean a
grouping of North Carolina counties which includes the county in which the new hospice inpatient
facility is proposed to be located and any one or more of the immediately surrounding North
Carolina counties which have a common border with that county, even if the borders only touch
at one point. No county may be included in a grouping of contiguous counties unless it is listed
in the following table:

County

HSA

Hospice Inpatient
Bed Deficit

Alexander

Ashe

Avery

Buncombe

Burke

Cleveland

Madison

Polk

Rutherford

Transylvania

Watauga

Wilkes

Yancey

Alamance

Caswell

Davidson

Guilford

NORTH CAROLINA REGISTER

July 1, 1994

428

PROPOSED RULES

County

HSA

Hospice Inpatient
Bed Deficit

lUUluUipil

Rockingham

Stokes

Surry

Cabarrus

III

Gaston

III

Iredell

III

Mecklenburg

III

Rowan

III

Stanly

III

Union

III

Chatham

Durham

Johnston

Lee

Bladen

Brunswick

Columbus

Harnett

Moore

New Hanover

Pender

Richmond

Scotland

Bertie

Duplin

Greene

Hertford

Nash

Northampton

Onslow

Pitt

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PROPOSED RULES

County

HSA

Hospice Inpatient
Bed Deficit

Wayne
Wilson

Statutory Authority G.S. 131E-176(25); 131E-177(1); 131E-1 83(b).

******************

Notice is hereby given in accordance with G.S.
150B-2 1.2 that the Commission for Mental Health,
Developmental Disabilities & Substance Abuse
Services intends to amend rules cited as 10 NCAC
14K .0314 - .0315.

lhe proposed effective date of this action is
October 1, 1994.

lhe public hearing will be conducted at 1:30
p.m. on August 9, 1994 at the Sheraton Inn Ra-
leigh at Crabtree Valley, 4501 Creedmoor Road,
U.S. 70 Vkst, Raleigh, N.C. 27612.

Ixeason for Proposed Action: Amend to comply
with federal early intervention regulations (34 CFR
Part 303). During the review of North Carolina 's
annual grant for early intervention funds under
PL. 99-457, the U.S. Department of Education
determined that specific requirements must be
included in these Rules in order to receive federal
funds.

Ksomment Procedures: Any interested person may
present comments by oral presentations or submit-
ting a written statement. Persons wishing to make
oral presentation should contact Charlotte Tucker,
Division of MH/DD/SAS, 325 N. Salisbury St. ,
Raleigh, N.C. 27603, 919-733-4774. Comments
submitted as a written statement must be sent to
the above address no later than August 8, 1994,
and must state the Rule to which the comments are
addressed. Time limits for oral remarks may be
imposed. Fiscal information regarding these Rules
is available from the Division, upon request.

CHAPTER 14 - MENTAL
HEALTH: GENERAL

SUBCHAPTER 14K - CORE
LICENSURE RULES FOR

MENTAL HEALTH: MENTAL

RETARDATION AND OTHER

DEVELOPMENTAL DISABILITIES:

AND SUBSTANCE ABUSE FACDHTffiS

SECTION .0300 - FACILITY AND
PROGRAM MANAGEMENT

.0314 ASSESSMENT

(a) The governing body shall develop and
implement written policies regarding admission
assessments for clients in each facility.

(b) Each facility shall complete an initial admis-
sion assessment for each client prior to the deliv-
ery of treatment/habilitation services. The initial
assessment shall include:

(1) the presenting problem or reason for
admission;

(2) the client's needs and strengths, and
when appropriate, the needs and
strengths of family members who may
contribute to the services provided to
the client;

(3) a provisional or admitting diagnosis
with an established diagnosis deter-
mined within 30 days of admission,
except for clients admitted to a detoxifi-
cation or other 24-hour medical pro-
gram for any length of time, who shall
have an established diagnosis upon
admission;

(4) a description of current status including
the following, when applicable:

(A) mental status, including suicide poten-
tial;

(B) developmental condition or impair-
ment;

(D) legal status or circumstances;

(E) medical condition; and

(F) family and other support systems;

(5) a description of the client's condition
from family or significant others, when
available; and

(6) the disposition, including referrals and
recommendations.

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430

PROPOSED RULES

(c) Data gathered during a screening or from
other sources within 30 days prior to admission
may be used to complete the assessment.

(d) For a client expected to receive services for
more than 30 days, the admission assessment shall
include the following within 30 days of admission:

(1) a social and family history;

(2) a medical history; and

(3) when applicable, histories and assess-
ments as follows:

(A) psychiatric, including previous treat-
ment;

(B) substance abuse, including previous
treatment;

(D) educational;

(E) auditory and visual;

(F) nutritional; and

(G) vocational.

(e) For all facilities serving infants and toddlers
with or at risk for developmental disabilities,
delays or atypical development, except for respite,
there shall be:

(1) an assessment of levels of physical,
(including vision and hearing), commu-
nication, cognitive, social and emotion-
al and adaptive skills development
which is based on professionally accept-
ed objective criteria ;

(2) a determination of the child's unique
strengths and needs in terms of these
areas of development and identification
of services appropriate to meet those
needs;

(3) if requested by the family, a determina-
tion of the resources, priorities and
concerns of the family, and the supports
and services necessary to enhance the
family's capacity to meet the develop-
mental needs of their infant or toddler
with or at risk for a disability. The
family-focused and directed assessment
is conducted by personnel trained to use
the appropriate methods and procedures
and shall be based on information pro-
vided through a personal interview and
incorporate the family's description of
these resources, priorities, and concerns
in this area;

(4) procedures developed and implemented
to ensure participation by the client's
family or the legally responsible per-
son;

(5) tests and other evaluation materials and

procedures administered in the native
language of the parents or other mode
of communication unless it is clearly
not feasible to do so;

(6) assessment procedures and materials
which are selected and administered so
as not to be racially or culturally dis-
criminatory;

(7) no single procedure used as the sole
criterion for determining a child's
eligibility;

(8) an integrated assessment process which
involves at least two persons, each
representing a different discipline or
profession, with the specific number
and types of disciplines based on the
particular needs of the child:

(A) The assessment shall include current
medical information provided by a
physician, physician's assistant, or
nurse practitioner; however, a physi-
cian, physician's assistant, or nurse
practitioner is not required as one of
the disciplines involved in the assess-
ment; and

(B) Further information regarding the
assessment may be found in the docu-
ment "Eligibility Determination for
the Infants-Toddler Program", pub-
lished by the Department of Environ-
ment, Health, and Natural Resources;

(9) an evaluation process based on in-
formed clinical opinion;

(10) an assessment process completed within
45 calendar days from the date of refer-
ral. The referral is initiated by a writ
ten request for these services made to
any one of the public agencies partici-
pating in the PL 99-457 Interagency
Agreement. The request becomes a
referral when the area program deter-
mines that all of the following is avail-
able:
(A) — the family's written con s ent to receive
this service;

(A) {B) sufficient background information
to enable the agency receiving the
referral to establish communication
through a telephone call or home
visit;

(B) {€) reason for referral, date of refer-
ral and agency or individual making
referral;

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PROPOSED RULES

date and primary physician; and
CD) {E) summary of any pre-existing child
and family screening or assessment
information;

(11) a 45 calendar day completion require-
ment which may be extended in excep-
tional circumstances, such as, the
child's health assessment is being
completed out-of-state, or family
desires make it impossible to complete
the assessment within the time period.
The specific nature and duration of
these circumstances which prevent
completion within 45 days and the
attempts made by the provider to
complete the assessment shall be
documented and an interim IFSP shall
be developed and implemented : and

(12) the child's family or legally responsible
person shall be fully informed of the
results of the assessment process.

Statutory Authority G.S. 122C-26; 130A-144;
130A-152; 143B-147.

.0315 TREATMENT/HABILITATION
PLANNING AND
DOCUMENTATION

(a) The governing body shall develop and
implement written policies regarding individual
treatment/habilitation plans and the qualifications
of staff, based on education and experience, who
will be responsible for implementation of such
plans.

(b) A treatment/habilitation plan shall be based
upon an assessment of the client's condition, assets
and needs, and the resources to meet these needs,
and shall be developed in partnership with the
:lient.

(c) The parent or the legally responsible person
Df a minor shall have the opportunity to participate
n the development and implementation of the
minor client's individual treatment/ habilitation
plan.

(d) The parent, with client consent, or the
egally responsible person of an adult shall have
he opportunity to participate in the development
and implementation of the adult client's individual
reatment/habilitation plan.

(e) Clinical responsibility for the development
and implementation of the treatment/habilitation
plan shall be designated.

(f) Initial treatment/habilitation objectives shall
3e documented, if services are to be provided,
prior to the establishment and implementation of

the comprehensive treatment/habilitation plan.

(g) Except as provided in Paragraphs (h)
through (j) of this Rule, a comprehensive plan
shall be developed and initiated within 30 days of
admission for clients who are expected to receive
services from the facility beyond 30 days. The
plan shall include, as appropriate to the client's
needs:

(1) documentation of the established
diagnosis;

(2) time-specific, measurable goals for
treatment/habilitation;

(3) general strategies or procedures to be
undertaken in order to meet goals and
the direct care staff responsible for
implementation;

(4) time-specific, measurable education or
treatment goals for family or significant
others, if applicable; and

(5) a schedule for time-specific planned
reviews, which may be set, in addition
to those required in Paragraph (k) of
this Rule.

(h) For all facilities serving infants and toddlers

with or at risk for developmental disabilities,

delays or atypical development, except for respite:

(1) there shall be a habilitation plan which

is referred to as the Individualized

Family Service Plan (IFSP) which shall

include:

(A) a description of the child's present
health status and levels of physical
(including vision and hearing),
communication, cognitive, social and
emotional, and adaptive development;

(B) with the concurrence of the family, a
description of the resources, priorities
and concerns of the family and the
supports and services necessary to
enhance the family's capacity to meet
the developmental needs of their
infant and toddler with or at risk for
a disability;

(D) criteria and time frames to be used to
determine progress towards goals;

(E) planned habilitation procedures related
to the goals;

(F) a statement of the specific early
intervention services to be provided to
meet the identified child and family
needs, the initiation dates, frequency
and method, duration, intensity and
location (including the most natural

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PROPOSED RULES

environment) of service delivery, and
the persons or agencies responsible;

(G) the name of the service coordinator
from the profession most immediately
relevant to the needs of the child or
family; and who is otherwise qualified
to carry out all applicable
responsibilities for coordinating with
other agencies and individuals the
implementation of the IFSP;

(H) the plans for transition into services
which are the responsibility of the
N.C. Department of Public
Instruction, or other available
services, when applicable;

(I) the payment arrangements for the
specific services delineated in
Subparagraph (h)(1)(F) of this Rule;

(J) a description of medical and other
services needed by the child, but
which are not required under P.L.
99-457, and the strategies to be
pursued to secure those services
through public or private resources.
The requirement regarding medical
services does not apply to routine
medical services, such as
immunization and well-baby care,
unless the child needs these services
and they are not otherwise available.

(2) The IFSP shall be:

(A) reviewed on at least a semi-annual
basis or more frequently upon the
family's request; and

(B) revised as appropriate, but at least
annually.

(3) The initial development and annual
revision process for the IFSP for infants
and toddlers shall include participation
by:

(A) the parent or parents of the child;

(B) other family members, as requested
by the parent;

(D) the provider of the early intervention
services;

(E) the service coordinator designated for
the family, if different from the
provider of the early intervention
services; and

(F) the provider of the assessment
service, if different from the provider
of the early intervention services.

(4) The initial IFSP meeting and annual
review reviews shall be arranged and
written notice provided to families early
enough to promote maximum
opportunities for attendance. The
semi-annual review process shall
include participation by persons
identified in Subparagraphs (h)(3)(A)
through (E) of this Rule. If any of
these individuals assessment and
intervention providers are unable to
attend one of the development or
review meetings, arrangements shall be
made for the person's involvement
through other means such as
participation in a telephone conference
call, having a knowledgeable authorized
representative attend the meeting or
making pertinent records available at
the meeting. Other a pproaches rather
than meetings may be used if acceptable
to the parents and other participants.

(5) The IFSP for infants and toddlers is
based upon the results of the assessment
referenced in 10 NCAC 14K .0314(e)
and upon information from any ongoing
assessment of the child and family .
However, early intervention services
may commence before completion of
this assessment if:

(A) parental consent is obtained; and

(B) the assessment is completed within the
45-day time period referenced in 10
NCAC 14K .0314(e).

(6) In the event that exceptional
circumstances, such as child illness,
residence change of family, or any
other similar emergency, make it
impossible to complete the assessment
within the 45-day time period
referenced in 10 NCAC 14K .0314(e),
the circumstances shall be documented
and an interim IFSP developed with
parent permission . The interim IFSP
shall include:

(A) the name of the service coordinator
who will be responsible for the
implementation of the IFSP and
coordination with other agencies and
individuals;

(B) goals for the child and family when
recommended;

(D) suggested activities that may be

433

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PROPOSED RULES

carried out by the family members.

(7) Each facility or individual who has a
direct role in the provision of early
intervention services specified in the
IFSP is responsible for making a good
faith effort to assist each eligible child
in achieving the goals set forth in the
IFS.

(8) The IFSP shall be developed within 45
days of referral for those children
determined to be eligible. The referral
shall be as defined in 10 NCAC 14K
.0314(e)(10).

(9) The contents of the IFSP must be fully
explained to the parents, and informed
written consent from the parents must
be obtained prior to the provision of
early intervention services described in
the plan. If the parents do not provide
consent with respect to a particular
early intervention service, or withdraw
consent after first providing i^ that
service may not be provided. The early
intervention services for which parental
consent is obtained must be provided.

(10) IFSP meetings shall be conducted in
settings convenient to and in the natural
language of the family.

(i) The goals for a client who receives services
from facilities providing day activity or alternative
family living, half-way house, therapeutic camp or
group home services in which the supervision and
therapeutic intervention are limited to sleeping
time, home living skills and leisure time activities,
may be limited to life-skill, social or recreational
goals.

(j) The goals for a client who receives services
from a community respite facility may be limited
to the special needs of the client, including
medications to be administered, dietary
considerations and expectations regarding other
services.

(k) A full review of each client's

treatment/habilitation plan shall be conducted at
least annually by the responsible professional in
accordance with the facility's quality assurance
plan, as determined by 10 NCAC 14K .0319. The
review shall include:

(1) the client's continuing need for service;
and

(2) a continuation or update of the client's
treatment/habilitation plan as defined in
Paragraph (g) of this Rule.

Statutory Authority G.S. 122C-26; 143B-147.

******************

Notice is hereby given in accordance with G.S.
150B-21.2 that the Department of Human Resourc-
es - Division of Vocational Rehabilitation Services
intends to amend rules cited as 10 NCAC 20 A
.0102; 20B .0203, .0206, .0224; 20C .0203,
.0205, .0316; and adopt rules cited as 10 NCAC
20C .0501 - .0502, .0601 - .0607.

1 he proposed effective date of this action is
October 1, 1994.

1 he public hearing will be conducted at 7:00
p.m. on July 18, 1994 at the Haywood Gymnasi-
um, Division of Vocational Rehabilitation Services,
805 Ruggles Drive, Dorothea Dix Campus, Ra-
leigh, North Carolina.

M\.eason for Proposed Action:
10 NCAC 20A .0102 - To specify the State's
definition of "individual with the most severe
disability" and supplementary definitions as re-
quired by Section 101(a)(5)(A) of the 1992 Amend-
ments to the Rehabilitation Act of 1973.
10 NCAC 20B .0203, .0206, .0224 - To bring the
Division's administrative review/appeals rules into
compliance with the provisions of Section 102(d) of
PL. 102-569.

10 NCAC 20C .0203 - To indicate that the Divi-
sion will establish order of selection priority
categories at the time eligibility is determined and
to specify notification and documentation require-
ments.

10 NCAC 20C .0205 - To set a limit on the
amount that can be paid for tuition to private
proprietary trade and vocational schools.
10 NCAC 20C .0316 - To specify the limits that
are set for vehicle, residence and work site modifi-
cations and to clarify that the Division will not
purchase vehicles for clients.
10 NCAC 20C .0501 - .0502 - To meet the re-
quirements of Federal regulations (34 C.F.R. Part
363) that all individuals eligible for supported
employment services meet the State definition of
"individuals with the most severe disabilities. "
10 NCAC 20C .0601 - .0607 - To establish the
Division's order of selection for services policy
that is required under PL. 102-569 when states
are not able to provide services to all eligible
individuals who apply.

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Csomment Procedures: Comments may be pre-
sented orally or in writing at the hearing. Oral
statements may be limited at the discretion of the
hearing officer. Written comments may also be
submitted until August 1, 1994 to Jackie Stalnaker,
Division of \bcational Rehabilitation Sendees,
P.O. Box 26053, Raleigh, NC 27611. To obtain
additional information or indicate need for alterna-
tive communication format contact Ms. Stalnaker
in writing or by phone (919) 733-3364 or TDD
(919) 733-5924.

CHAPTER 20 - DIVISION OF

VOCATIONAL REHABILITATION

SERVICES

SUBCHAPTER 20A - GENERAL
INFORMATION

SECTION .0100 - INFORMATION
REGARDING RULES

.0102 DEFINITIONS

As used in this Chapter, the following terms
have the meaning specified:

£7}

full or permanent remission.
" Post-employment services"

has the

(1)

(2)

£21

(a)
fbl

id}

(ei
UQ

£4}

151

(6}

"Division" means the Division of Voca-
tional Rehabilitation Services of the
Department of Human Resources.
"Division Director" or "Director" means
the Director of the Division of Vocational
Rehabilitation Services.
"Functional Capacity" means the ability
to perform in the following areas:

communication;

interpersonal skills:

mobility;

self-care;

self-direction;

work skills; and

work tolerance.
"Individual with a severe disability" has
the meaning specified in 34 C.F.R.
361.5.

"Individual with the most severe
disability" means an individual with a
severe disability whose impairment
seriously limits three or more functional
capacities in terms of an employment
outcome.

"Permanent disability" means any
physical or mental condition which is
expected to be lasting regardless of
medical or psychological intervention,
and which is highly unlikely to go into

meaning specified in 34 C.F.R. 361.48.
The Code of Federal Regulations adopted by
reference in this Rule shall automatically include
any later amendments thereto as allowed by. G.S.
150B-21.6. Copies of the federal regulations so
adopted may be obtained at no cost from the
Division.

Authority G.S. 143-545; 143-546; 150B-21.6; 34
C.F.R. 361.5, 361.36, 361.48, and Part 363.

SUBCHAPTER 20B - PROCEDURE

SECTION .0200 - CONTESTED CASES:

ADMINISTRATIVE REVIEWS: APPEALS

HEARINGS

.0203 REQUEST FOR ADMINISTRATIVE
REVIEW AND APPEALS HEARING

(a) When any applicant for or client receiving
vocational rehabilitation services wishes to request
an administrative review and/or an appeals
hearing, the individual shall submit a written
request to the appropriate regional director of the
Division.

(b) The request shall indicate if the individual is
requesting:

(1) an administrative review and an appeals
hearing to be scheduled concurrently;
or

(2) only an appeals hearing.

(1) the name, address and telephone
number of the applicant or client; and

(2) a concise statement of the
determination(s) made by the
rehabilitation staff for which an
administrative review and/or appeal are
being requested and the manner in
which the person's rights, duties or
privileges have been affected by the
determination(s) .

fd) — If a client is requesting an ndminiatmtivc
review and the issue to be reviewed concerns the
denial of services already underway under the
client's — individualized — written — rehabilitation
program (TWRP) and the client wishes the disputed
s ervices — to continue during the adminiatmtive
review, the client shall indicate the desire to have
the services — continued — in the request for on
administrative review and submit the request pnof
to the effective date of the change in the IWRR

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PROPOSED RULES

The Division ohall provide for the continuation of
t he dioputcd service set forth in the client's IWRP
during the administrative review for a period not
t o exceed 30 calendar days from the proposed
effective date of the change in the IWRP unless the
disputed service is contraindioatcd on the basis of
fflcdical/psychologieal information contained in th e
individual's caoc record, in which case the servic e
s hall not be continu e d.

(d) The Division shall not suspend, reduce, or
terminate services being provided to a client under
an individualized written rehabilitation program
(IWRP) pending final resolution of the issue
through either an a ppeals hearing or an
administrative review unless the individual or the
individual's representative so requests, or the
Division has evidence that the services have been
obtained through misrepresentation. fraud,
collusion, or criminal conduct on the part of the
individual.

Authority G.S. 143-546; 150B-1; P.L. 102-569.

.0206 APPOINTMENT OF HEARING
OFFICER

Upon receipt of the applicant's or client's request
for an appeals hearing from the regional director,
the deputy director shall appoint arrange for the
a ppointment of an impartial hearing officer who
meets the criteria of is in the pool of persons
qualified as defined in 34 C.F.R. 361.1(c)(2)
361.5(b) to conduct a hearing and who is mutually
agreed upon by the Director and the individual or
the individual's representative .

Authority G.S. 143-546; 150B-1; P.L. 102-569; 34
CER. 361.5(b).

.0224 DrVISION DIRECTOR'S REVIEW
AND FINAL DECISION

(a) The Division Director may review the
hearing officer's decision and render the final
decision.

(b) The Division Director's decision to review
the hearing officer's decision shall be based on the
following standards of review:

(1) Is the hearing officer's decision
arbitrary, capricious, an abuse of
discretion, or otherwise unreasonable?

(2) Is the hearing officer's decision
supported by substantial evidence, i.e.,
consistent with facts and applicable
federal and state policy?

(3) In reaching the decision, has the
hearing officer given appropriate and

adequate interpretation to such factors
as:

(A) the federal statute and regulations as
they apply to specific issue(s) in
question;

(B) the state plan as it applies to the
specific issue(s) in question;

(D) key portions of conflicting testimony;

(E) division options in the delivery of
services where such options are
permissible under the federal statute;

(F) restrictions in the federal statute with
regard to such supportive services as
maintenance and transportation; and

(G) approved federal or division policy as
it relates to the issue(s) in question.

(c) If the Division Director decides to review
the hearing officer's decision, the Director shall
send the written notification and allow the
submission of additional evidence as required by
34 C.F.R. 361. 48 (c)(2)(iv)ond (vii) 361.57 . The
written notification shall be given to the applicant
or client personally or by certified mail. If given
by certified mail, it shall be deemed to have been
given on the delivery date appearing on the return
receipt.

(d) Upon a determination to review the hearing
officer's decision, the Division Director shall make
the final decision and provide the written report
thereof as required by 34 C.F.R. 361. 48 (c)(2)(viii)
and (ix) 361.57 . The division director shall not
overturn or modify a decision, or part of a
decision, of an impartial hearing officer that
supports the position of the individual except as
allowed under 34 C.F.R. 361.57(b)(9). The final
decision shall be given to the applicant or client
personally or by certified mail. If given by
certified mail, it shall be deemed to have been
given on the delivery date appearing on the return
receipt.

(e) The hearing officer's decision shall be the
final decision under the conditions specified in 34
C.F.R. 361. 4 8 (c)(2)(v) 361.57(b)(6) .

(f) The Division Director shall forward a copy
of the final decision, whether issued under (d) or
(e) of this Rule, to the deputy director, the CAP
director, the regional director, and the applicant's
or client's representative, as appropriate. A copy
shall also be included in the individual's official
case record.

Authority G.S. 143-546; 150B-1; P.L. 102-569,
Section 102(d); 34 C.F.R. 361.57.

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PROPOSED RULES

SUBCHAPTER 20C - PROGRAM RULES

SECTION .0200 - ELIGIBILITY

.0203 DETERMINATION OF ORDER OF
SELECTION PRIORITY CATEGORY

The Division shall follow the order of selection
for services specified in the Three Year State Plan
for Vocational Rehabilitation Services Under Title
I of the Rehabilitation Act of 1973, as amen ded-;
covering Fiscal Years 1989, 1990 and 1991. This
adoption — by — reference — is — made — under — Gr-Sr
150B 1 4 (c).

(a) The Division shall provide written
notification to all applicants for services at the time
of application of either:

(1) the existing order of selection, or

(2) that an order of selection will be
implemented if or when it is determined
the Division has insufficient resources
to serve all applicants who are
determined eligible.

£b) The Division shall determine each client's
priority category at the time the individual is
determined eligible for services. The client shall
be placed in the highest category (beginning with
Category One) for which he/she qualifies.

(c) In establishing functional limitations as part
of the priority category determination. Division
staff shall review all functional capacities that may
pose problems in the rehabilitation program and
employment outcomes with the eligible individual
in order to identify functional limitations related to
the person's disability(ies).

(d) The Division shall notify each eligible
individual of his/her priority classification in
writing at the same time the notification of
eligibility is provided.

(e) The record of services shall contain
documentation of the rationale for the client's
priority category assignment.

(f) The Division shall change a client's priority
classification immediately if there are changes in
the client's circumstances that warrant a change.
The Division shall notify the client in writing of
any change in priority classification.

Authority G.S. 143-545; 143-546; 34 C.ER.
361.35.

.0205 SERVICES COVERED BY OR

EXEMPT FROM FINANCIAL NEEDS
TEST

(a) The financial need of a client, as determined
by the financial needs test specified in Rule .0206

of this Section, shall apply as a condition for
furnishing the following vocational rehabilitation
services to clients eligible for services or to clients
eligible for extended evaluation:

(1) physical and mental restoration;

(2) maintenance;

(3) transportation;

(4) occupational license;

(5) tools, equipment, and initial stock
(including livestock), supplies and
necessary shelters in connection with
these items;

(6) books, training supplies, and materials
required for courses in post-secondary
educational facilities;

(7) services to members of a handicapped
individual's family necessary to the
adjustment or rehabilitation of the
handicapped individual;

(8) telecommunications, sensory, and other
technological aids and devices;

(9) recruiting and training to provide new
employment opportunities in
rehabilitation, health, welfare, public
safety, law enforcement, and other
public service employment;

(10) post-employment services necessary to
assist handicapped individuals in
maintaining suitable employment (other
than those services in Paragraph (b) of
this Rule which are provided without
regard to financial need); and

(11) other goods and services expected to
benefit a handicapped individual in
obtaining employment.

(b) The financial needs test shall not apply as a
condition for furnishing the following:

(1)

(2)
(3)

(A)
(B)

ID)

services exempt from the financial
needs test under 34 C.F.R. 361.47;
interpreter services for the deaf;
tuition for:
on-the-job training;
sheltered — aed — vocational — workshop
community rehabilitation program
training;

community college/ college parallel
programs up to the catalog rate;
■(€) vocational training-r-ftad ati
{i) community college vocational
programs up to the catalog rate;
and
(ii) proprietary for profit vocational
and trade schools up. to a limit of
four thousand dollars ($4.000) per
training program; and

437

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PROPOSED RULES

(E) {D) post-secondary education up to
the maximum rate charged for the
public university system.

(4) fees required in post-secondary
educational facilities up to the
maximum rate charged for the public
university system; and

(5) training supplies and materials required
for training in division-operated
facilities and the training programs
listed in Paragraphs (b)(3)(A) and (B)
of this Rule.

(c) The Division may grant an exception to the
rate for tuition and required fees for
post-secondary education specified in Paragraphs
(b)(3)(D) £E) and (b)(4) of this Rule when
necessary to accommodate the special training
needs of certain severely handicapped individuals
who must be enrolled in high-cost, special
programs designed for severely physically
handicapped students.

Authority G.S. 143-545; 143-546; 34 C.ER.
361.40, 361.41, and 361.47.

SECTION .0300 - SCOPE AND NATURE OF
SERVICES

0316 OTHER GOODS AND SERVICES

(a) Modifications of clients' residences are
limited as follows:

(1) A limit of ten thousand dollars
($10.000) per client shall be placed on
modification projects when the
residence is owned by the client or the
client's immediate family.

(2) Modifications to mobile homes shall be
limited to mobile homes owned by the
client or the client's family which are
located on land owned by the client or
client's family except for those
situations where exterior modifications
are not permanently affixed to a parcel
of rented or leased land and are
moveable with the mobile home-
Mobile home modifications shall not
exceed eight thousand five hundred
dollars ($8.500) per client.

(3) Modifications to rented or leased
residences shall not exceed five
thousand five hundred dollars ($5.500)
per client.

{b} Job site modifications shall not exceed seven
lousand dollars ($7^000) p er client unless special

ircumstances warrant a higher amount which must

be approved by the Director.

(d) The Independent Living Program of the
Division may assist with the modification of a
client : or familv-owned/leased vehicle in order to
enhance the client's ability to function
independently in the family or to actively
participate in the community. The Vocational
Rehabilitation Program of the Division may assist
with the modification of a client-owned or leased
vehicle for vocational purposes or to assist a client
enrolled in a college training program when there
are no or limited on-campus living facilities.
Other options such as public transportation or
family assistance shall be used when available.
The following conditions and limitations apply:

(1) Modifications

for clients in

programs unless the

client of the Independent

shall not be considered

secondary school

individual is a

Living

Rehabilitation Program.

(2) Modifications for postsecondarv
training may be considered only:

(A) when the client is a full-time student
with satisfactory grades and personal
transportation is required as part of
the training curriculum: or

(B) when the client must live off campus
because the college has no. or only
limited, on-campus housing.

(3) The Division may require an evaluation
of any used vehicle by a qualified
mechanic to verify that the vehicle is in
good repair. The rehabilitation
engineer shall certify that the vehicle
will accommodate the needed
modifications.

(4) The Division shall not modify vehicles
with more than 80.000 miles unless the
individual is a client of the Independent
Living Rehabilitation Program.

(5) Modifications costing more than nine
thousand dollars ($9.000) shall not be
provided unless the individual is a
client of the general program and the
vehicle has less than 50.000 miles.

(6) Division ownership of the modifications
shall be secured through a signed
Security Agreement.

(e) Other goods and services not specifically
mentioned in the rules in this Section may be
provided to clients who are eligible for services if
necessary to enable them to become employable
or. in the case of the Independent Living Program.

NORTH CAROLINA REGISTER

July 1, 1994

438

PROPOSED RULES

to live independently . The other services shall not
include the purchase of land or the purchase or
construction of a building.

Authority G.S. 143-546; 34 C.F.R. 361.42.

SECTION .0500 - SUPPORTED
EMPLOYMENT SERVICES

.0501 COMPLIANCE WITH FEDERAL
REQUIREMENTS

(a) The Division shall administer its Su pported
Employment Program in compliance with the
provisions of federal regulations 34 C.F.R. Part
363.

(b) The Code of Federal Regulations adopted by
reference in this Rule shall automatically include
any later amendments thereto as allowed by. G.S.
150B-21.6. Copies of 34 C.F.R. Part 363 may be
obtained at no cost from the Division.

Authority G.S. 143-545; 143-546; 150B-21.6; 34
C.F.R. Part 363.

.0502 ELIGIBILITY AND MOST SEVERE
DISABILITY

The Supported Employment Program shall serve
only those individuals with the most severe
disabilities as defined in 10 NCAC 20A .0102.

Authority G.S. 143-545; 143-546; 34 C.F.R.
363.3.

SECTION .0600 - ORDER OF SELECTION
FOR SERVICES

.0601 APPLICABILITY OF POLICY

(a) The rules in this Section specify the order of
selection for service that shall be followed by the
Division in its general program when it does not
have the financial or staff resources to serve all
eligible individuals who a pply for services. The
rules do not apply to the Independent Living
Program.

(b) The order of selection for service is re quired
by. Section 101 (a)(5)(A) of the 1992 Amendments
to the Rehabilitation Act of 1973 and 34 C.F.R.
361.36.

Authority G.S. 143-545; 143-546; 34 C.F.R.
361.36.

.0602 IMPLEMENTATION OF ORDER OF
SELECTION

(a) The Division Director shall make a

determination of the necessity for implementing the
order of selection specified in these Rules as
required by 34 CFR 361.36.

(b) When the Division Director determines that
the order of selection shall be implemented, it shall
be implemented on a statewide basis and the
Director shall also determine how many priority
categories can be served within available resources
and notify Division staff of this decision.

(c) The Division shall provide written
notification to all cooperative programs with which
it has written agreements and all vendors of
services as appropriate of its decision to implement
an order of selection.

Authority G.S. 143-545; 143-546; 34 C.F.R.
361.36.

.0603 PRIORITY CATEGORIES

(a) The priority categories for the order of
selection for services for eligible individuals are as
follows:

121
(31

Category One. Individuals who have

the most severe disabilities;

Category Two. Individuals with severe

disabilities;

Category Three. Individuals with a

non-severe permanent disability(ies)

who would be served by a program

designed to help the individual

141

transition from school to work:
Category Four. Individuals with a
non-severe disability(ies) who will need

multiple vocational rehabilitation

(51

services to attain a suitable employment

outcome; and

Category Five. Any eligible individual

who does not qualify for placement in
a higher priority category.
(b) The Division shall follow the provisions of
34 C.F.R. 361.30(b) regarding public safety

officers when a pplicable in its order of selection.

This adoption by. reference shall automatically
include any later amendments to the cited federal

regulation as allowed by G.S. 150B-21.6. A copy
of the federal regulation may be obtained at no
cost from the Division.

(c) An individual's priority category is
determined when eligibility is determined as
outlined in Rule .0203 of this Subchapter.

Authority G.S. 143-545; 143-546; 34 CF.R.
361.30 and 361.36.

.0604 PROCEDURES

439

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PROPOSED RULES

(a) Eligible individuals who are already
receiving services under an Individualized Written
Rehabilitation Program (IWRP) at the time the
order of selection is implemented shall not be
subject to the order of selection process. Their
rehabilitation programs will continue until their
records of service are closed.

(b) The Division shall serve individuals in
Priority Category One first and individuals in the
other priority categories in descending order from
Priority Category Two down through Priority
Category Five according to the availability of
resources.

(c) Eligible individuals for whom rehabilitation
services have not been planned under an
Individualized Written Rehabilitation Program
prior to the implementation of the order of
selection and whose classification is below the
categories a pproved for service shall be placed in
a "waiting" status. They shall remain in the
"waiting" status until their priority category is

opened for services.

(d) When the order of selection is implemented,
all individuals whose classification will mean they
will be placed in a "waiting" status shall be
notified in writing of their status. When services
are made available to any category in which
individuals have been in a "waiting" status, the
Division shall notify all persons in that priority
ategorv that their rehabilitation program can be
leveloped.

(e") Individuals determined eligible after the
jrder of selection for service is implemented shall
•eceive services if they are classified in the
categories being served or shall be placed in a
'waiting" status if their classification places them

n a category not currently being served.

iuthority O.S.
161.36.

ervices and is otherwise eligible for such services.
be services shall be provided without regard for
lie order of selection.

143-545; 143-546; 34 C.F.R.

0605 POST EMPLOYMENT SERVICES

When a former client requires post-employment

iuthority
61.36.

G.S. 143-545; 143-546; 34 C.F.R.

0606 CASE FINDING AND REFERRAL

Case finding efforts shall not be modified
ecause of an order of selection. The Division has

continuing responsibility to make the public and

rferral sources aware of the services it has to

offer eligible individuals with disabilities,
especially those with severe disabilities. Referral
sources shall be informed of an existing order of
selection or of the potential of an order of
selection being implemented, but they shall be
reassured that this should not discourage referrals
or a pplications.

Authority C. S.
361.36.

.0607

143-545; 143-546; 34 C.F.R.

THIRD-PARTY FUNDING
ARRANGEMENTS

The Division shall ensure that its funding
arrangements for providing services, including
third-party arrangements and establishment grants.
are consistent with the order of selection.

Authority C. S.
361.36.

143-545; 143-546; 34 C.F.R.

******************

J\otice is hereby given in accordance with O.S.
150B-21.2 that DHR/Division of Medical Assis-
tance intends to adopt rules cited as 10 NCAC 261
.0401 - .0405; and amend rule cited as 10 NCAC
26K.0O06.

1 he proposed effective date of this action is
October 1, 1994.

1 he public hearing will be conducted at 1:30
p.m. on August 1, 1994 at the North Carolina
Division of Medical Assistance, 1985 Umstead
Drive, Room 132, Raleigh, NC 27603.

Jxeason for Proposed Action:

10 NCAC 261 .0401 - .0405 - To provide pre-
admission screening and annual resident review
appeal procedures for nursing facility residents.
10 NCAC 26K .0006 - To clarify provider billings
to recipients and protect recipient from being
billed for services which the recipient anticipates
will be paid for by Medicaid.

Ksomment Procedures: Written comments con-
cerning these Rules must be submitted by August 1,
1994, to: Division of Medical Assistance, 1985
Umstead Drive, Raleigh, NC 27603, ATTN: Clar-
ence Ervin, APA Coordinator. Oral comments
may be presented at the hearing. In addition, a

NORTH CAROLINA REGISTER

July 1, 1994

440

PROPOSED RULES

fiscal impact statement is available upon written
request from the same address.

CHAPTER 26 - MEDICAL ASSISTANCE

SUBCHAPTER 261 - PROCEDURAL RULES

SECTION .0400 - PASARR HEARINGS

.0401 DEFINITIONS

(a) "Division" means the North Carolina Divi-
sion of Medical Assistance of the Department of
Human Resources.

(b) "Hearing Officer" means the person desig-
nated to preside over hearings regarding Pre-
admission Screening and Annual Resident Review
(PASARR) determinations.

(c) "Hearing Unit" means the Chief Hearing
Officer and his staff in the Division of Medical
Assistance. Department of Human Resources.

(d) "Preadmission Screening and Annual Resi-
dent Review (PASARR) Notice of Determination"
means the form developed by the Division.

(e) "Request for Hearing" means a clear expres-
sion, in writing, by the evaluated individual or
family member or legal representative of the
evaluated individual, that the evaluated individual
wants to appeal the PASARR determination.

(f) The "Request for Hearing" form means the
form developed by the Division.

{g} TJie "North Carolina PASARR Psychiat-
ric/Mental Retardation/ Dual Psychiatric and
MR/RC Evaluation" forms means the forms
developed by the Division.

Authority G.S. 108A-25(b); 42 U.S.C.S.
1395i-3(e)(3), (f)(3); 1396r(e)(3), (e)(7)(F), (f)(3);
42 C.F.R. 483.5; 42 C.F.R. 483.12; 42 C.F.R.
483.200; 42 C.F.R. 483.204; 42 C.F.R. 483.206.

.0402 PASARR REQUIREMENTS

(a) The evaluated individual and family member
or legal representative shall be notified in writing
of the Division of MH/DD/SAS' PASARR
determination under the provisions of 42 CFR
483 .130(10 which is incorporated by reference with
subsequent changes or amendments. A copy of 42
CFR 483 . 1 30(k) can be obtained from the Division
of Medical Assistance at a cost of twenty cents
($0.20) per copy.

(b) The PASARR Notice of Determination form
shall be used by Division of MH/DD/SAS when
giving notice of a PASARR determination under
provisions of 42 CFR 483.130(l)(l-4) which is
incorporated by reference with subsequent changes

or amendments. A copy of 42 CFR

483.130(T)(l-4) can be obtained from the Division
of Medical Assistance at a cost of twenty cents
($0.20) p er copy.
(c) The Division of MH/DD/SAS shall provide

a Request for Hearing form, pertinent Evaluation

form, and PASARR Notice of Determination to the

evaluated individual and legal representative under

provisions of 42 CFR 483.128(1) which is
incorporated by reference with subsequent changes

or amendments. A copy of 42 CFR 483.128(1)

can be obtained from the Division of Medical

Assistance at a cost of twenty cents ($0.20) per
copy.

Authority G.S. 108A-25(b); 42 U.S.CS.
1395i-3(e)(3), (f)(3); 1396r(e)(3), (e)(7)(F), (f)(3);
42 CFR. 483.5; 42 CFR. 483.12; 42 CF.R.
483.128; 42 CF.R. 483.130; 42 CF.R. 483.200;
42 CF.R. 483.204; 42 CF.R. 483.206.

.0403 INITIATING A HEARING

(a) In order to initiate an a ppeal of a PASARR

determination, the evaluated individual or family
member or legal representative shall submit
written request for a hearing to the Hearing Unit.

The request for hearing must be received by the
Hearing Unit within JJ. calendar days from the
date of the PASARR Notice of Determination. If
the 11th day falls on a Saturday. Sunday, or legal

holiday, then the period during which an appeal

may be requested shall run until the end of the

next day which is not a Saturday. Sunday, or legal

holiday.

(b) The request for hearing shall be submitted to

the Hearing Unit by mail, facsimile, or hand
delivery.

Authority G.S. 108A-25(b); 42 U.S.CS. 1395i
3(e)(3) and - (f)(3); 1396r(e)(3), (e)(7)(F), and
(f)(3); 42 CF.R. 431.200; 42 CF.R. 483.5; 42
C.F.R. 483.12; 42 CF.R. 483.200; 42 CF.R,
483.204; 42 CF.R. 483.206.

.0404 HEARING PROCEDURES

(a) Upon timely receipt of a request for a
hearing, the Hearing Unit shall notify the Division
of MH/DD/SAS of the request.

(b) The parties shall be notified by certified maij
of the date, time and place of the hearing. Ifthe
hearing is to be conducted in person, it shall be
held in Raleigh. North Carolina.

{c} The Division of MH/DD/SAS shall mail all
documents and records to be used at the hearing to
the person requesting the hearing by certified mail

441

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NORTH CAROLINA REGISTER

July 1, 1994

PROPOSED RULES

and forward identical information to the Hearing
Unit, to be received at least five working days
prior to the hearing.

(d) The hearing officer may grant continuances.

(e) The hearing officer may dismiss a re quest
for a hearing if the evaluated individual or legal
representative fails to a ppear at a scheduled
hearing.

j[fj The hearing officer may proceed to conduct
scheduled hearing if the Division of
MH/DD/SAS fails to a ppear at a scheduled
hearing.

(g) The Rules of Civil Procedure as contained in
G.S. 1A-1 and the General Rules of Practice for
the Superior and District Courts as authorized by
G.S. 7A-34 and found in the Rules Volume of the
North Carolina General Statutes shall not apply in
any hearings held by the Division Hearing Officer
unless another specific statute or other rule
provides otherwise. Division hearings are not
hearings within the meaning of G.S. 150B and
shall not be governed by the provisions of that
chapter unless otherwise stated in these Rules.

The hearing officer shall use the North Carolina
Rules of Evidence for guidance in conducting
hearings. Parties may be represented by counsel

or other representative at the hearing.

recipient has specifically understood he will be
charged for the services. This provision ia meant
to protect the recipient from being billed fo r
s ervices which the recipient anticipates will be paid
for by Medicaid.

(b) A provider may not bill a Medicaid recipient
for Medicaid services for which it receives no
reimbursement from the state agency because the
provider failed to follow program regulations.

(c) A provider who accepts a patient as a
Medicaid patient agrees to accept Medicaid
payment plus any authorized co-payment and third
party payment as payment in full, except that a
provider may not deny services to any Medicaid
patient on account of the individual's inability to
pay the co-pay amount.

(d) Providers may bill the recipient when they
are 65 years of age or older and qualify for
Medicare benefits, but fail to supply their
Medicare number as proof of coverage.

Authority G.S. 108A-25(b); 108A-54; 150B-11; 42
C.F.R. 447.15.

TITLE 15A - DEPARTMENT OF

ENVIRONMENT, HEALTH, AND

NATURAL RESOURCES

Authority G.S. 108A-25(b); 42 U.S.C.S.
1395i-3(e)(3), (e)(7)(F), (f)(3); 42 U.S.C.S.
1396r(e)(3), (f)(3); 42 C.F.R. 431.200; 42 C.F.R.
483.200; 42 C.F.R. 483.204; 42 C.F.R. 483.206.

.0405 HEARING OFFICER'S FINAL
DECISION

The Hearing Officer's final decision shall uphold
jr reverse the Division of MH/DD/SAS' decision.
Copies of the final decision shall be mailed via
^rtified mail to the parties.

iuthority G.S. 108A-25(b); 42 U.S.CS.
\395i-3(e)(3), (e)(7)(F), (f)(3); 42 U.S.CS.
\396r(e)(3), (f)(3); 42 C.F.R. 431.200; 42 CFR.
183.200; 42 C.F.R. 483.204; 42 CFR. 483.206.

SUBCHAPTER 26K - TITLE XLX APPEALS
PROCEDURES

0006 PROVIDER BILLINGS TO
RECIPIENT

(a) Except as provided for in Paragraph (d) of
ns Rule, providers shall Providers may not bill
ledicaid recipients for any Medicaid covered
ervices provided to recipients unless the provider
as specifically informed the recipient and the

ISotice is hereby given in accordance with G.S.
150B-21.2 that the Department of Environment,
Health, and Natural Resources, Mining Commis-
sion intends to adopt rule cited as 15A NCAC 5B
.0013.

1 he proposed effective date of this action is
October 1, 1994.

1 he public hearing will be conducted at 7:00
p.m. on August 4, 1994 at the Archdale Building,
Ground Floor Hearing Room, 512 North Salisbury
Street, Raleigh, North Carolina.

ixeason for Proposed Action: To establish a
period of time for applicants to respond to the
Department 's requests for additional information
relating to mining permit applications.

Lsomment Procedures: Any person requiring
information may contact Mr. Tracy E. Davis at
Land Quality Section, P.O. Box 27687, Raleigh,
North Carolina 27611-7687, telephone (919)
733-4574. Written comments must be submitted to

NORTH CAROLINA REGISTER

July 1, 1994

442

PROPOSED RULES

the above address no later than August 15, 1994.
Notice of an oral presentation should be given to
the above address and telephone number. Persons
who call in advance of the hearing will be given
priority on the speaker's list.

CHAPTER 5 - MINING: MINERAL
RESOURCES

SUBCHAPTER 5B - PERMITTING AND
REPORTING

.0013 RESPONSE DEADLINE TO

DEPARTMENT'S REQUEST(S)

An applicant or permittee shall submit to the
Department supplemental information regarding an
application for a new permit, modified permit, or
permit renewal within 180 days after the date of
receipt of the Department's written request(s) for
such information. Upon written request of the
applicant or permittee to the Director, an addition-
al reasonable specified period of time not to
exceed one year shall be granted upon determina-
tion of good cause by. the Director. Additional
time may be granted by the Mining Commission,
provided written request is made by the a pplicant
or permittee before the expiration of the one-year
period.

Statutory Authority G.S.
143B-290.

74-51; 74-52; 74-63;

******************

l\otice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Coastal Management
intends to adopt rules cited as 15A NCAC 7H
.2201 - .2205.

1 he proposed effective date of this action is
December 1, 1994.

1 he public hearing will be conducted at 4:00
p.m. on July 28, 1994 at the Sheraton Grand, New
Bern, NC.

ixeason for Proposed Action: The adoption of
these Rules will establish a procedure for authoriz-
ing the installation of private moorings in response
to an increasing demand for such facilities over the
past 24 months. This is a new permit requirement
for a type of development that has not previously

required permits.

Ksomment Procedures: All persons interested in
this matter are invited to attend the public hearing.
The Coastal Resources Commission will receive
mailed written comments postmarked no later than
August 1, 1994. Any person desiring to present
lengthy comments is requested to submit a written
statement for inclusion in the record of proceed-
ings at the public hearing. Additional information
concerning the hearing or the proposals may be
obtained by contacting Dedra Blackwell, Division
of Coastal Management, PO Box 27687, Raleigh,
NC 27611-7687, (919) 733-2293.

CHAPTER 7 - COASTAL
MANAGEMENT

SUBCHAPTER 7H - STATE GUIDELINES

FOR AREAS OF ENVIRONMENTAL

CONCERN

SECTION .2200 - GENERAL PERMIT

FOR CONSTRUCTION OF FREE

STANDING MOORINGS IN

ESTUARINE WATERS AND

PUBLIC TRUST AREAS

.2201 PURPOSE

This permit will allow the construction of free
standing moorings in the estuarine waters and
public trust areas AECs according to the authority
provided in Subchapter 7J .1100 of this Chapter
and according to the following guidelines. This
permit will not apply to waters adjacent to the
Ocean Hazard AEC.

Statutory Authority G.S. 113A-107; 113A-118.1.

.2202 APPROVAL PROCEDURES

(a) The applicant must contact the Division of
Coastal Management and complete an application
form requesting a pproval for development.

(b) The a pplicant must provide:

(1) information on site location, dimensions
of the project area, and his/her name
and address; and

(2) a dated plat(s) showing existing and
proposed development; and

(3) confirmation that:

£A} a written statement has been obtained
and si gned by the adjacent riparian
property owners indicating that they
have no objections to the proposed

443

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NORTH CAROLINA REGISTER

July 1, 1994

PROPOSED RULES

work; or
(B) the adjacent riparian property owners
have been notified by certified mail of
the proposed work. Such notice shall
instruct adjacent pro perty owners to
provide any comments on the pro-
posed development in writing for
consideration by. permitting officials
to the Division of Coastal Manage-
ment within ten days of receipt of the
notice, and, indicate that no response
will be interpreted as no objection-
DC M staff will review all comments.
If PCM determines that:
£i) the comments are relevant to the
potential impacts of the proposed
project; and
(ii) the permitting issues raised by the
comments are worthy of more
detailed review, the applicant will
be notified that he/she must sub-
mit an application for a major
development permit.
(c) A pproval of individual projects will be
acknowledged in writing by the Division of Coast-
al Management and the a pplicant shall be provided
a copy of this Section. Construction authorized by
this permit must be completed within 90 days of
permit issuance or the general authorization ex-
pires and a new permit shall be required to begin
or continue construction.

Statutory Authority G.S. 113A-107; 113A-118.1

.2203 PERMIT FEE

The a pplicant must pay a permit fee of fifty
dollars ($50.00). This fee may be paid by check

or money order made payable to the Department.

Statutory Authority G.S. 113A-107; 113A-118.1.

2204 GENERAL CONDITIONS

(a) A "free standing mooring" is any means to
attach a ship, boat, vessel, floating structure or

other water craft to a stationary underwater device.

mooring buoy, buoyed anchor, or piling (as long

as the piling is not associated with an existing or
proposed pier, dock, or boathouse).

(b) Free standing moorings authorized by this
permit shall be for the exclusive use of the riparian

and shall not provide either leased or rented
moorings or any other commercial services.

landowner(s) in whose name the permit is issued.

by the existence of free standing moorings autho-
rized by this permit.

(d) This general permit may not be applicable to
proposed construction when the Department
determines that the proposal might significantly
affect the quality of the human environment or
unnecessarily endanger adjoining properties. In
those cases, individual permit applications and
review of the proposed project will be required
according to 15A NCAC 7J.

(e) Development carried out under this permit
must be consistent with all local requirements.
AEC Guidelines, and local land use plans current
at the time of authorization.

(f) Individuals shall allow authorized representa-
tives of the Department of Environment. Health,
and Natural Resources to make periodic inspec-
tions at any time deemed necessary in order to be
sure that the activity being performed under the
authority of this general permit is in accordance
with the terms and conditions prescribed herein.

(g) Free standing mooring(s) shall not be trans-
ferable or assignable. Upon transfer of riparian
property ownership, the mooring(s) must be
removed by the original permittee unless a new
permit is issued to the new riparian owner.

Statutory Authority G.S. 113A-107; 113A-118.1.

.2205 SPECIFIC CONDITIONS

(a) Free standing moorings may be located up to
a maximum of 400 feet from the mean high water
line, or the normal water line, whichever is appli-
cable.

(b) Free standing moorings along federally
maintained channels must meet Corps of Engineers
guidelines.

(c) Free standing moorings in no case shall
extend more than 1/3 the width of a natural water
body or man-made canal or basin-
id) Free standing mooring buoys and piles are to

be evaluated based upon the arc of the swing
including the vessel to be moored. Moorings and
the attached vessel shall not interfere with the
access to any riparian property, and shall have a
minimum setback of .15 feet from the adjacent
property lines extended into the water at the points
that they intersect the shoreline. The minimum
setbacks provided in the rule may be waived by
the written agreement of the adjacent riparian
owner(s). or when two adjoining riparian owners
are co-applicants. Should the adjacent property be
sold before construction commences, the a pplicant
shall obtain a written agreement with the new
owner waiving the minimum setback and submit it

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NORTH CAROLINA REGISTER

July I, 1994

444

PROPOSED RULES

to the Division of Coastal Management prior to
initiating any development of free standing moor-
ings. The line of division of areas of riparian
access shall be established by drawing a line along
the channel or deep water in front of the property,
then drawing a line perpendicular to the line of the
channel so that it intersects with the shore at the
point the upland property line meets the water's
edge.

(e) The total number of docking/mooring facili-
ties to be authorized via a CAM A General permit,
a Certificate of Exemption or any combination of
the two may not exceed four per property.

£0 Free standing moorings shall not significantly
interfere with shellfish franchises or leases.
A pplicants for authorization to construct free
standing moorings shall provide notice of the
permit application to the owner of any part of a
shellfish franchise or lease over which the pro-
posed installation would extend.

(g) Free standing moorings may not be estab-
lished in submerged cable/pipe crossing areas or in
a manner which interferes with the operation of an
access through any bridge.

(h) Free standing moorings shall be marked or
colored in compliance with U.S. Coast Guard and
N.C. Wildlife Resource Commission requirements
and the required marking maintained for the life of
the moonng(s).

£i] Free standing moorings must bear owner's
name, vessel State registration numbers or U. S.
Customs Documentation numbers. Required
identification must be legible for the life of the
mooring(s).

(j) The type of material used to anchor a pro-
posed mooring buoy(s) must be acceptable to the
Division of Coastal Management.

(k) If use of any free standing mooring autho-
rized by this General permit is discontinued for a
period of J_2 months or more, it must be removed
by the permittee.

£1} Mooring buoys authorized by this General
permit must be a minimum 12" in diameter and
shall not exceed 36" inches in diameter.

Statutory Authority G.S. 113A-107; 113A-118.1.
******************

iSotice is hereby given in accordance with G.S.
150B-21.2 that EHNR - Commission for Health
Sendees intends to amend rules cited as ISA
NCAC 19A .0101 - .0102, .0202 - .0205, .0401;
and adopt rules cited as 15A NCAC 19A .0208 -

.0209.

1 he proposed effective date of this action is
October 1, 1994.

1 he public hearing will be conducted at 1:30
p.m. on July 21, 1994 at the Archdale Building,
Ground Floor Hearing Room, 512 North Salisbury
Street, Raleigh, N. C.

Jxeason for Proposed Action:
15A NCAC 19A .0101 - E. coli 0157.H7 is a
bacteria that has been recognized as an important
public health threat in recent years. It causes
diarrhea, bloody diarrhea, and hemolytic-uremic
syndrome and can lead to chronic renal failure
and death. In 1993, the Council of State and
Territorial Epidemiologists recommended that
states make this a reportable disease and that
laboratories should routinely culture all stool
specimens from persons with bloody diarrhea for
E. coli 0157:H7. It is transmitted by the fecal-oral
route and has been associated with foodborne and
day care outbreaks. This amendment adds E. coli
0157.H7 infection and hemorrhagic fevers to the
list of reportable diseases and conditions.
This Rule requires that susceptibility testing be
performed on all cultures tested for Mycobacterium

tuberculosis . Adequate treatment of every case of
TB is necessary to prevent infection in others.
Requiring that susceptibilities be performed on all
cultures tested for Mycobacterium tuberculosis

allows the physician to order the most effective
treatment for each case ofTBas quickly as possi-
ble, thus reducing further unnecessary spread of
infection.

Proposed changes: (b) adds PCR as another
confirmatory test for HIV infection.
15A NCAC 19 A .0102 - This proposed rule would
make E. coli 0157:H7 reportable by both physi-
cians and laboratories, require laboratories to
culture all stool specimens submitted from persons
with bloody diarrhea for E. coli 0157.H7, and
specify control measures to prevent spread.
(a)(4) This change adds HIV (24) to the list of
reportable diseases which require specified infor-
mation to be reported on a surveillance form
provided by the Division of Epidemiology.
(d)(2) Redefines how, when and to whom specified
STD laboratory reports will be reported. This is
necessary to improve the HIV/STD Control
Branch's ability to track and initiate appropriate
and timely disease intervention activities. Changes

445

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NORTH CAROLINA REGISTER

July 1, 1994

PROPOSED RULES

wording for clarity. Adds high STS titers as a
priority for immediate reporting by phone. This
will improve the HIV/STD Control Branch 's ability
to rapidly respond to suspected infectious syphilis
cases and to prevent the further spread of this
disease. To help increase response time the
change also modifies the rule to allow laboratories
to report directly to the HIV/STD Control Branch
Regional Office where their laboratory is located
as well as the HIV/STD Control Branch in
Raleigh.

This rule requires that reports of susceptibility
testing be reported within 7 days. Prompt
reporting of susceptibility is vital. Current
technology may require up to eight weeks to
confirm TB and susceptibilities. Delays in
reporting result in delays in ordering adequate
treatment, increasing the risk of spread of resistant
TB.

ISA NCAC 19A .0202 - (l)(b) This change
broadens the control measures to include drug
elated paraphernalia, which could be
:ontaminated with HIV and then transmitted to
minfected individuals through the sharing of IDU
works. "

'4) The change adds clarity to the rule. The rule
tow clearly focuses on the risk of transmission "if
he source were infected with HIV. "
10) The change allows for pretest counseling to
te done in a group setting when it is deemed
ippropriate by the provider. However, it also
learty states that clients must be allowed to ask
juestions in private, and that post test counseling
nust be privately given to each infected person.
SA NCAC 19 A .0203 - (b)(3) This change
rovides clarity that focuses on the risk of
ransmission "if the source were infected with the
epatitis B virus. "

SA NCAC 19A .0204 - (e) This change expands
his rule to include chlamydia which can lead to
evere complications or death for the baby (during
regnancy or after its birth). If detected,
hlamydia can be treated.

5A NCAC 19 A .0205 - This rule requires that
ersons with tuberculosis infection over 50 years of
ge who have risk factors for HIV be tested for
UV and that persons under 50 years of age with
iberculosis infection be tested for HIV. Persons
o-ufected with TB and HIV must be treated for
bout twice as long as persons who do not have
\e HIV (CDC/ATS treatment guidelines),
herefore, it is vital that physicians know the HIV
atus of persons at highest risk of HIV infection,
ersons under 50 years of age with TB infection
nd to also have risk factors for HIV infection.

Secondarily, HIV infection tends to reduce the
capacity of the immune system to react to TB
antigen. Use of at least two other antigens in
persons who have other indications of
compromised immunity provides additional
information the clinician can use in evaluating
whether the immune system is capable of providing
a true response to the TB antigen.
15A NCAC 19A .0208 - For the last several years
there have been a large number of cases of
shigellosis due primarily to transmission in day
care centers. Current control measures are vague
and have been difficult for local health
departments and day care centers to interpret.
These proposed rule changes clarify the control
measures for shigellosis.

15A NCAC 19 A .0209 - There have been a
number of occasions in the last several years when
two or more cases of meningococcal disease have
been reported in the same geographic area within
a short time. When this occurs it is necessary to
determine whether the organisms are of the same
serogroup in order to assess the potential for an
outbreak. Frequently, no serotyping has been
done on the earliest specimens which may be
unavailable or non-viable by the time subsequent
cases occur. Because of this the CDC has
recommended that all isolates of meningococcus be
serogrouped. These proposed rule changes should
require laboratories to serogroup meningococcal
isolates or send them to the State Public Health
Laboratory for serogrouping.
15A NCAC 19 A .0401 - The proposed rule
changes serve to clarify questions regarding the
number of doses of measles vaccine, mumps
vaccine, and rubella vaccine that are required for
an individual prior to school entry (i. e. , two doses
of measles vaccine, one dose each of rubella and
mumps vaccine). In addition, these rule changes
also clarify the existing language regarding
diphtheria, tetanus, and whooping cough
vaccination, oral poliomyelitis vaccination, and
mumps vaccination prior to school entry. Finally,
these rule changes accelerate the dates by which
infants are required to be immunized (i. e. , three
doses of DTP vaccine by age 7 months instead of
1 year). These changes will bring our rules in line
with the recommended schedule established by the
Advisory Committee on Immunization Practices
(ACIP). In addition, these changes will help to
ensure that infants receive their first series of
immunizations closer to the recommended
schedule.

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446

PROPOSED RULES

(comment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to Grady L.
Balentine, Department of Justice, P.O. Box 629,
Raleigh, NC 27602-0629. All written comments
must be received by August 1, 1994. Persons who
wish to speak at the hearing should contact Mr.
Balentine at (919) 733-4618. Persons who call in
advance of the hearing will be given priority on
the speaker's list. Oral presentation lengths may
be limited depending on the number of people that
wish to speak at the public hearing. Only persons
who have made comments at a public hearing or
who have submitted written comments will be
allowed to speak at the Commission meeting.
Comments made at the Commission meeting must
either clarify previous comments or proposed
changes from staff pursuant to comments made
during the public hearing process.

IT IS VERY IMPORTANT THAT ALL
INTERESTED AND POTENTIALLY AFFECTED
PERSONS, GROUPS, BUSINESSES,
ASSOCIATIONS, INSTITUTIONS OR AGENCIES
MAKE THEIR VIEWS AND OPINIONS KNOWN
TO THE COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS, WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL
PROVISIONS OF THE PROPOSED RULES. THE
COMMISSION MAY MAKE CHANGES TO THE
RULES AT THE COMMISSION MEETING IF THE
CHANGES COMPLY WITH GS. 150B-21.2(f).

CHAPTER 19 - HEALTH: EPIDEMIOLOGY

SUBCHAPTER 19A - COMMUNICABLE
DISEASE CONTROL

SECTION .0100 - REPORTING OF
COMMUNICABLE DISEASES

.0101 REPORTABLE DISEASES AND
CONDITIONS

(a) The following named diseases and conditions
are declared to be dangerous to the public health
and are hereby made reportable within the time
period specified after the disease or condition is
reasonably suspected to exist:

(1) acquired immune deficiency syndrome
(AIDS) - 7 days;

(2) amebiasis - 7 days;

(3) anthrax - 24 hours;

(4)
(5)
(6)
(7)
(8)
(9)

(10)
(ID
(12)
(13)

(15)

(19)

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blastomycosis - 7 days;

botulism - 24 hours;

brucellosis - 7 days;

Campylobacter infection - 24 hours;

chancroid - 24 hours;

chlamydial infection (laboratory

confirmed) - 7 days;

cholera - 24 hours;

dengue - 7 days;

dipthcria diphtheria - 24 hours;

R coli 0157:H7 infection = 24 hours:

(14) encephalitis - 7 days;

(15) foodborne disease, including but
not limited to Clostridium perfringens,
staphylococcal, and Bacillus cereus - 24
hours;

(16) gonorrhea - 24 hours;

(IT) granuloma inguinale - 24 hours;
(18) Hemophilus Haemophilus

influenzae, invasive disease - 24 hours;
hemorrhagic fevers - 24 hours:

(20) hepatitis A - 24 hours;

(21) hepatitis B - 24 hours;

(22) hepatitis B carriage - 7 days;

(23) hepatitis non-A, non-B - 7 days;

(24) human immunodeficiency virus
infection (HIV) confirmed - 7 days;

(25) legionellosis - 7 days;
leprosy - 7 days;
leptospirosis - 7 days;
Lyme disease - 7 days;

lymphogranuloma venereum - 7

malaria - 7 days;
measles (rubeola) - 24 hours;
meningitis, pneumococcal

- 7

meningitis, viral (aseptic) - 7

(26)

(27)

(28)

(29)

days;

(30)

(31)

(32)

days;

(33)

days;

(34) meningococcal disease - 24 hours;

(35) mucocutaneous lymph node
syndrome (Kawasaki syndrome) - 7
days;

(36) mumps - 7 days;

(37) nongonococcal urethritis - 7 days;

(38) plague - 24 hours;

(39) paralytic poliomyelitis - 24 hours;

(40) psittacosis - 7 days;

(41) Q fever - 7 days;
rabies, human - 24 hours;
Reye's syndrome - 7 days;
Rocky Mountain spotted fever - 7

(42)

(43)

(44)

days;

(45)

(46)

rubella - 24 hours;
rubella congenital syndrome

447

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PROPOSED RULES

days;
(45) (47) salmonellosis - 24 hours;
{46) (48) shigellosis - 24 hours;

(47) £49) syphilis - 24 hours;

(48) {50} tetanus - 7 days;

(49) (51) toxic shock syndrome - 7 days;

(50) (52) trichinosis - 7 days;

(54) (53) tuberculosis - 24 hours;

(53) (54) tularemia - 24 hours;

(55) £55} typhoid - 24 hours;

(54) (56) typhoid carriage (Salmonella
typhi) - 7 days;

(55) (57) typhus, epidemic (louse-borne) -
7 days;

(56) (58) whooping cough - 24 hours;

(57) (59) yellow fever - 7 days.

(b) For purposes of reporting; confirmed human
immunodeficiency virus infection (HIV) is defined
as a positive virus culture; repeatedly reactive EIA
antibody test confirmed by western blot or indirect
immunofluorescent antibody test; PCR; or other
confirmed testing method approved by the Director
of the State Public Health Laboratory conducted on
or after February 1, 1990.

(c) In addition to the laboratory reports specified
in G.S. 130A-139. laboratories shall report the
following laboratory test results:

(1) Direct susceptibilities, as the percent of
colonies resistant to isoniazid. rifampin,
streptomycin, ethambutol. and any
other antimvcobacterials tested for all
cultures of Mycobacterium tuberculosis;
and

£2) Isolates of E. coli 0157:H7.

Statutory Authority G.S. 130A-134; 130A-135;
130A-141,

.0102 METHOD OF REPORTING

(a) When a report of a disease or condition is
required to be made pursuant to G.S. 130A-135
through 139 and 15A NCAC 19A .0101, the
report shall be made to the local health director as
follows:

(1) For diseases and conditions required to
be reported within 24 hours, the initial
report shall be made by telephone, and
the report required by Subparagraph (2)
of this Rule shall be made within seven
days.

(2) In addition to the requirements of
Subparagraph (1) of this Rule, the
report shall be made on the
communicable disease report card
provided by the Division of

Epidemiology and shall include the
name and address of the patient, the
name and address of any minor's parent
or guardian, and all other pertinent
epidemiologic information requested on
the form.

(3) Until September 1, 1994, reports of
cases of confirmed HIV infection
identified by anonymous tests that are
conducted at HIV testing sites
designated by the State Health Director
pursuant to 15A NCAC 19A .0202(10)
shall be made on forms provided by the
Department for that purpose. No
communicable disease report card shall
be required. Effective September 1,
1994, anonymous testing shall be
discontinued and all cases of confirmed
HIV infection shall be reported in
accordance with 15 A NCAC 19A
.0102(a)(1) and (2).

(4) In addition to the requirements of
Subparagraphs (1) and (2) of this Rule,
the epidemiologic information requested
on a surveillance form provided by the
Division of Epidemiology shall be
completed and submitted for the
reportable diseases and conditions
identified in 15A NCAC 19A .0101(1),
(6), (+7), (18), (20), (21), (22), (23),
(24), (25), (26), £27L (28), (39); (30),
£31L (32), &¥h (34), £35L IML TO
(58), (39L (40L ( 4 1), ( 4 2), (43), (44),
£45L I46L (1 8 ), ( 4 9), (50), (51), (52),
(53), (54), (551, (56), and (58) .

(5) Communicable disease report cards and
surveillance forms are available from
the Surveillance Unit, N.C. Division of
Epidemiology, P.O. Box 27687,
Raleigh, N.C. 27611, and from local
health departments.

(b) Notwithstanding the time frames established
in J_5A NCAC 19A .0101 a restaurant or other
food or drink establishment is required to report
all outbreaks or suspected outbreaks of foodborne
illness in its customers or employees and all
suspected cases of foodborne disease or foodborne
condition in food-handlers at the establishment by
telephone to the local health department within 24
hours in accordance with Subparagraph (a)(1) of
this Rule . However, the establishment is not
required to submit a report card or surveillance
form pursuant to Subparagraphs (a)(2) and (a)(3)
of this Rule .

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448

PROPOSED RULES

(2)

and other food or drink establishments pursuant to
G.S. 130A-138, the diseases and conditions to be
reported shall be those listed in 15 A NCAC 19A
.0101 (5), (7), (10), OIL tWfc LL5L <&h I2QL
<4$h £47) <4€h £4JL ^h £52}, <5£h £55_L and
(54) £56).

(d) Laboratories required to report test results
pursuant to G.S. 130A-139 and 15A NCAC 19A
.0101(c) shall report as follows:

(1) The results of the specified tests for
syphilis and gonorrhea shall be reported
to the local health department by the
first and fifteenth of each month.
Reports of the results of the specified
tests for gonorrhea and syphilis shall
include the specimen collection date,
the patient's age, race, and sex, and the
submitting physician's name, address,
and telephone numbers.
Positive darkfield examinations for
syphilis and STS titers of 1:16 and
above shall be reported within 24 hours
by telephone to the fflV/STD Control
Branch by telephone at (919) 733-7301,
or the HIV/STD Control Branch
Regional Office where the laboratory is
located.

Positive tuberculosis test results shall be
reported to the Tuberculosis Control
Branch on a form provided by the
Department within seven days.
Laboratory reports required by 15A
NCAC 19A .0101(c)(1) and by G.S.
BOA- 139(1) shall be reported within
seven days of completion of the
laboratory test to the Tuberculosis
Control Branch on a form provided by
the Branch or in another format
acceptable to the Branch that includes
the information on the form.
Positive cultures for E\ coli 0157:H7
shall be reported within 24 hours of
isolation to the Communicable Disease
Control Section.

(3)

£4}

Statutory Authority G. S.
130A-141.

130A-134; 130A-135;

SECTION ,0200 - CONTROL MEASURES
FOR COMMUNICABLE DISEASES

.0202 CONTROL MEASURES - HTV

The following are the control measures for the
Acquired Immune Deficiency Syndrome (AIDS)
and Human Immunodeficiency Virus (HIV)

(c)

(d)
(e)

infection:
(1) Infected persons shall:

(a) refrain from sexual intercourse unless
condoms are used; exercise caution
when using condoms due to possible
condom failure;

(b) not share needles or syringes; or any
other drug-related equipment-
paraphernalia, or works that may be
contaminated with blood through
previous use;

not donate or sell blood, plasma,
platelets, other blood products, semen,
ova, tissues, organs, or breast milk;
have a skin test for tuberculosis;
notify future sexual intercourse partners
of the infection; if the time of initial
infection is known, notify persons who
have been sexual intercourse and needle
partners since the date of infection;
and, if the date of initial infection is
unknown, notify persons who have
been sexual intercourse and needle
partners for the previous year.

The attending physician shall:
give the control measures in Item (1) of
this Rule to infected patients, in
accordance with 15A NCAC 19A
.0210;

If the attending physician knows the
identity of the spouse of an
HIV-infected patient and has not, with
the consent of the infected patient,
notified and counseled the spouse
appropriately, the physician shall list
the spouse on a form provided by the
Division of Epidemiology and shall
mail the form to the Division; the
Division will undertake to counsel the
spouse; the attending physician's
responsibility to notify exposed and
potentially exposed persons is satisfied
by fulfilling the requirements of
Sub-Items (2) (a) and (b) of this Rule;

(d) advise infected persons concerning the
risk of perinatal transmission and
transmission by breastfeeding.

(3) The attending physician of a child who is
infected with HIV and who may pose a
significant risk of transmission in the
school or day care setting because of
open, oozing wounds or because of

(2)
(a)

(b)

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PROPOSED RULES

behavioral abnormalities such as biting
shall notify the local health director. The
local health director shall consult with the
attending physician and investigate the
circumstances.

(a) If the child is in school or scheduled for
admission and the local health director
determines that there may be a
significant risk of transmission, the
local health director shall consult with
an interdisciplinary committee, which
shall include appropriate school
personnel, a medical expert, and the
child's parent or guardian to assist in
the investigation and determination of
risk. The local health director shall
notify the superintendent or private
school director of the need to appoint
such an interdisciplinary committee.

(i) If the superintendent or private school
director establishes such a committee
within three days of notification, the
local health director shall consult with
this committee.

(ii) If the superintendent or private school
director does not establish such a
committee within three days of
notification, the local health director
shall establish such a committee.

(b) If the child is in school or scheduled for
admission and the local health director
determines, after consultation with the
committee, that a significant risk of
transmission exists, the local health
director shall:

(i) notify the parents;

(ii) notify the committee;

(hi) assist the committee in determining
whether an adjustment can be made to
the student's school program to
eliminate significant risks of
transmission;

(iv) determine if an alternative educational
setting is necessary to protect the
public health;

(v) instruct the superintendent or private
school director concerning appropriate
protective measures to be
implemented in the alternative
educational setting developed by
appropriate school personnel; and

(vi) consult with the superintendent or
private school director to determine
which school personnel directly
involved with the child need to be

notified of the HIV infection in order

to prevent transmission and ensure

that these persons are instructed

regarding the necessity for protecting

confidentiality.

health director determines that there is

a significant risk of transmission, the

local health director shall notify the

parents that the child must be placed in

an alternate child care setting that

eliminates the significant risk of

transmission.

(4) When health care workers or other

persons have a needlestick or nonsexual

non-intact skin or mucous membrane

exposure to blood or body fluids that^ if

the source were infected with HIV,

would po s e s pose a significant risk of

HIV transmission, the following shall

apply:

(a) When the source person is known:

(i) The attending physician or
occupational health care provider
responsible for the exposed person, if
other than the attending physician of
the person whose blood or body fluids
is the source of the exposure, shall
notify the attending physician of the
source that an exposure has occurred.
The attending physician of the source
person shall discuss the exposure with
the source and shall test the source
for HIV infection unless the source is
already known to be infected.
The attending physician of the
exposed person shall be notified of the
infection status of the source.

(ii) The attending physician of the
exposed person shall inform the
exposed person about the infection
status of the source, offer testing for
HIV infection as soon as possible
after exposure and at reasonable
intervals up to one year to determine
whether transmission occurred, and, if
the source person was HIV infected,
give the exposed person the control
measures listed in Sub-Items (l)(a)
through (c) of this Rule. The
attending physician of the exposed
person shall instruct the exposed
person regarding the necessity for
protecting confidentiality.

(b) When the source person is unknown,

NORTH CAROLINA REGISTER

July 1, 1994

450

PROPOSED RULES

the attending physician of the exposed
person shall inform the exposed person
of the risk of transmission and offer
testing for HIV infection as soon as
possible after exposure and at
reasonable intervals up to one year to
determine whether transmission
occurred,
(c) A health care facility may release the
name of the attending physician of a
source person upon request of the
attending physician of an exposed
person.

(5) The attending physician shall notify the
local health director when the physician,
in good faith, has reasonable cause to
suspect a patient infected with HIV is not
following or cannot follow control
measures and is thereby causing a
significant risk of transmission. Any
other person may notify the local health
director when the person, in good faith,
has reasonable cause to suspect a person
infected with HIV is not following
control measures and is thereby causing
a significant risk of transmission.

(6) When the local health director is notified
pursuant to Item (5) of this Rule, of a
person who is mentally ill or mentally
retarded, the local health director shall
confer with the attending mental health
physician or appropriate mental health
authority and the physician, if any, who
notified the local health director to
develop an appropriate plan to prevent
transmission.

(7) The Director of Health Services of the
North Carolina Department of Correction
and the prison facility administrator shall
be notified when any person confined in
a state prison is determined to be infected
with HIV. If the prison facility
administrator, in consultation with the
Director of Health Services, determines
that a confined HIV infected person is
not following or cannot follow prescribed
control measures, thereby presenting a
significant risk of HIV transmission, the
administrator and the Director shall
develop and implement jointly a plan to
prevent transmission, including making
appropriate recommendations to the unit
housing classification committee.

(8) The local health director shall ensure that
the health plan for local jails include

education of jail staff and prisoners about
HIV, how it is transmitted, and how to
avoid acquiring or transmitting this
infection.

(9) Local health departments shall provide
testing for HIV infection with individual
pre- and post-test counseling at no charge
to the patient. Third party payors may
only be billed for HIV counseling and
testing when such services are provided
as a part of family planning and maternal
and child health services. By August 1,
1991, the State Health Director shall
designate a minimum of 16 local health
departments to provide anonymous
testing. Beginning September 1, 1991,
only cases of confirmed HIV infection
identified by anonymous tests conducted
at local health departments designated as
anonymous testing sites pursuant to this
Sub-Item shall be reported in accordance
with 15A NCAC 19A .0102(a)(3). All
other cases of confirmed HIV infection
shall be reported in accordance with 15A
NCAC 19A .0102(a)(1) and (2).
Effective September 1, 1994, anonymous
testing shall be discontinued and all cases
of confirmed HIV infection shall be
reported in accordance with 15A NCAC
19A .0102(a)(1) and (2).

(10) Appropriate counseling for HIV testing
shall include individualized pro ond post
test — counseling — which — provides risk
assessment, risk reduction guidelines,
appropriate referrals for medical and
psychosocial services, and, when the
person tested is determin ed- found to be
infected with HIV, control measures.
Pre-test counseling may be done in a
group or individually, as long as each
individual has the o pportunity to ask
questions in private. Post-test counseling
must be individualized.

(11) A local health department or the
Department may release information
regarding an infected person pursuant to
G.S. 130A- 143(3) only when the local
health department or the Department has
provided direct medical care to the
infected person and refers the person to
or consults with the health care provider
to whom the information is released.

(12) Notwithstanding Rule .0201(d) of this
Section, a local or state health director
may require, as a part of an isolation

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PROPOSED RULES

order issued in accordance with G.S.
130A-145, compliance with a plan to
assist the individual to comply with
control measures. The plan shall be
designed to meet the specific needs of the
individual and may include one or more
of the following available and appropriate
services:

(a) substance abuse counseling and
treatment;

(b) mental health counseling and treatment;
and

(13) The Division of Epidemiology shall
conduct a partner notification program to
assist in the notification and counseling of
partners of HIV infected persons. All
partner identifying information obtained
as a part of the partner notification
program shall be destroyed within two
years.

Statutory Authority G.S. 130A-133; 130A-135;
130A-144; 130A-145; 130A-148(h).

0203 CONTROL MEASURES -
HEPATITIS B

(a) The following are the control measures for
lepatitis B infection. The infected persons shall:

(1) refrain from sexual intercourse unless
condoms are used except when the
partner is known to be infected with or
immune to hepatitis B;

(2) not share needles or syringes;

(3) not donate or sell blood, plasma,
platelets, other blood products, semen,
ova, tissues, organs, or breast milk;

(4) if the time of initial infection is known,
identify to the local health director all
sexual intercourse and needle partners
since the date of infection; and, if the
date of initial infection is unknown,
identify persons who have been sexual
intercourse or needle partners during
the previous six months;

(5) for the duration of the infection, notify
future sexual intercourse partners of the
infection and refer them to their
attending physician or the local health
director for control measures;

(6) be tested six months after diagnosis to
determine if they are chronic carriers,

annually for two years thereafter if they
remain infected, and when necessary to
determine appropriate control measures
for persons exposed pursuant to
Paragraph {3) £b) of this Rule,
(b) The following are the control measures for
persons reasonably suspected of being exposed:

(1) when a person has had sexual
intercourse exposure to hepatitis B
infection, the person shall be given
hepatitis B immune globulin or immune
globulin, 0.06 ml/kg, IM as soon as
possible but no later than two weeks
after the last exposure;

(2) when a person is a household contact,
sexual intercourse or needle sharing
contact of a person who has remained
infected with hepatitis B for six months
or longer, the partner or household
contact, if susceptible and at risk of
continued exposure, shall be vaccinated
against hepatitis B;

(3) when a health care worker or other
person has a needlestick, non-intact
skin, or mucous membrane exposure to
blood or body fluids that^ if the source
were infected with the hepatitis B virus,
would po s es pose a significant risk of
hepatitis B transmission, the following
shall apply:

(A) when the source is known, the source
person shall be tested for hepatitis B
infection, unless already known to be
infected;

(B) when the source is infected with
hepatitis B and the exposed person is:

(i) vaccinated, the exposed person
shall be tested for anti-HBs. If
anti-HBs is less than ten SRU by
RIA or negative by EIA, the
exposed person shall be given
hepatitis B immune globulin, 0.06
ml/kg, IM immediately and a
single does of hepatitis B vaccine
within seven days;

(ii) not vaccinated, the exposed
person shall be given hepatitis B
immune globulin, 0.06 ml/kg, IM
immediately and, if at high risk
for future exposure, begin
vaccination with hepatitis B
vaccine within seven days;

(i) vaccinated, no intervention is

NORTH CAROLINA REGISTER

July 1, 1994

452

PROPOSED RULES

necessary;
(ii) not vaccinated, begin vaccination

with hepatitis B vaccine within

seven days if at high risk for

future exposure.
(4) infants born to infected mothers shall be
given hepatitis B immune globulin, 0.5
ml, IM as soon as maternal infection is
known and infant is stabilized;
vaccinated against hepatitis B beginning
as soon as possible; and tested for
HBsAg at 12-15 months of age.

(c) The attending physician shall advise all
patients known to be at high risk, including
injection drug users, men who have sex with men,
hemodialysis patients, and patients who receive
frequent transfusions of blood products, that they
should be vaccinated against hepatitis B if
susceptible.

(d) The following persons shall be tested for
hepatitis B infection:

(1) pregnant women unless known to be
infected; and

(2) donors of blood, plasma, platelets,
other blood products, semen, ova,
tissues, or organs.

Statutory Authority G.S. 130A-135; 130A-144.

.0204 CONTROL MEASURES - SEXUALLY
TRANSMITTED DISEASES

(a) Local health departments shall provide
diagnosis, testing, treatment, follow-up, and
preventive services for syphilis, gonorrhea,
chlamydia, nongonococcal urethritis, mucopurulent
cervicitis, chancroid, lymphogranuloma venereum,
and granuloma inguinale. These services shall be
provided upon request and at no charge to the
patient.

(b) Persons infected with, exposed to, or
reasonably suspected of being infected with
gonorrhea, chlamydia, non-gonococcal urethritis,
and mucopurulent cervicitis shall:

(1) Refrain from sexual intercourse until
examined and diagnosed and treatment
is completed, and all lesions are healed;

(2) Be tested, treated, and re-evaluated in
accordance with the STD Treatment
Guidelines published by the U.S. Public
Health Service. The recommendations
contained in the STD Treatment
Guidelines shall be the required control
measures for testing, treatment, and
follow-up for gonorrhea, chlamydia,
nongonococcal urethritis, and

mucopurulent cervicitis, and are
incorporated by reference including
subsequent amendments and editions.
A copy of this publication is on file for
public viewing with the HTV/STD
Control Branch located at 225 N.
McDowell Street, Cooper Building,
Raleigh, N.C. 27611-7687 or a copy
may be obtained free of charge by
writing the fflV/STD Control Branch,
P.O. Box 27687, Raleigh, N.C.
27611-7687, and requesting a copy.
However, urethral Gram stains may be
used for diagnosis of males rather than
gonorrhea cultures unless treatment has
failed;
(3) Notify all sexual partners from 30 days
before the onset of symptoms to
completion of therapy that they must be
evaluated by a physician or local health
department,
(c) Persons infected with, exposed to, or
reasonably suspected of being infected with
syphilis, lymphogranuloma venereum, granuloma
inguinale, and chancroid shall:

(1) Refrain from sexual intercourse until
examined and diagnosed and treatment
is completed, and all lesions are healed;

(2) Be tested, treated, and re-evaluated in
accordance with the STD Treatment
Guidelines published by the U.S. Public
Health Service. The recommendations
contained in the STD Treatment
Guidelines shall be the required control
measures for testing, treatment, and
follow-up for syphilis,
lymphogranuloma venereum, granuloma
inguinale, and chancroid, except that
chancroid cultures shall not be
required;

(3) Give names to a disease intervention
specialist employed by the local health
department or by the HIV/STD Control
Branch for contact tracing of all sexual
partners and others as listed in this
Rule:

(A) for syphilis:

(i) congenital - all immediate family
members;

(ii) primary - all partners from three
months before the onset of
symptoms to completion of
therapy and healing of lesions;

(iii) secondary - all partners from six
months before the onset of

453

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PROPOSED RULES

symptoms to completion of
therapy and healing of lesions;
and
(iv) latent - all partners from 12
months before the onset of
symptoms to completion of
therapy and healing of lesions
and, in addition, for women with
late latent, spouses and children;

(B) for lymphogranuloma venereum:

(i) if there is a primary lesion and no
buboes, all partners from 30 days
before the onset of symptoms to
completion of therapy and healing
of lesions; and

(ii) if there are buboes all partners
from six months before the onset
of symptoms to completion of
therapy and healing of lesions;

(C) for granuloma inguinale - all partners
from three months before the onset of
symptoms to completion of therapy
and healing of lesions; and

(D) for chancroid - all partners from ten
days before the onset of symptoms to
completion of therapy and healing of
lesions.

(d) All persons evaluated or reasonably
ispected of being infected with any sexually
ansmitted disease shall be tested for syphilis,
icouraged to be tested confidentially for HIV,
nd counseled about how to reduce the risk of
.-quiring sexually transmitted disease, including
le use of condoms.

(e) All pregnant women shall be tested for
^philiSj. chlamydia, and gonorrhea early in
regnancy and in the third trimester. Pregnant
omen at high risk for exposure to syphilis^
ilamydia, and gonorrhea shall also be tested for

philis^ chlamydia, and gonorrhea at the time of
slivery.

(f) All newborn infants shall be treated
x»phylactically against gonococcal ophthalmia
;onatorum in accordance with the STD Treatment
uidelines published by the U. S. Public Health
rvice. The recommendations contained in the
IT) Treatment Guidelines shall be the required
rophylactic treatment against gonococcal
rtrthalmia neonatorum.

atutory Authority G.S. 130A-135; 130A-144.

1205 CONTROL MEASURES -
TUBERCULOSIS

(a) The local health director shall promptly

investigate all cases of tuberculosis disease and
their contacts in accordance with the provisions of
Control of Communicable Diseases in Man.
Control of Communicable Diseases in Man is
hereby incorporated by reference including
subsequent amendments and editions. Copies of
this publication are available from the American
Public Health Association, Department JE, 1015
15th Street, N.W., Washington, DC 20005 for a
cost of fifteen dollars ($15.00) each plus three
dollars ($3.00) shipping and handling. A copy is
available for inspection in the Communicable
Disease Control Section, Cooper Memorial Health
Building, 225 N. McDowell Street, Raleigh, North
Carolina 27611-7687.

(b) The following persons shall be skin tested
for tuberculosis and given appropriate clinical,
microbiologic and x-ray examination in accordance
with the "Diagnostic Standards and Classification
of Tuberculosis," published by the American
Thoracic Society, which is incorporated by
reference including subsequent amendments and
editions:

(1) Household and other close contacts of
active cases of tuberculosis;

(2) Persons reasonably suspected of having
tuberculosis disease;

(3) Inmates in the custody of, and staff
with direct inmate contact in, the
Department of Corrections upon
incarceration or employment, and
annually thereafter;

(4) Patients and staff in long term care
facilities upon admission or
employment and annually thereafter;

(5) Clients and staff in residential facilities
operated by the Department of Human
Resources upon admission or
employment and annually thereafter.

A copy of "Diagnostic Standards and Classification
of Tuberculosis" is available by contacting the
Department of Environment, Health, and Natural
Resources, Tuberculosis Control Branch, Post
Office Box 27687, Raleigh, North Carolina
2761 1-7687 at no charge.

(c) Treatment and follow-up for tuberculosis
infection or disease shall be in accordance with
"Treatment of Tuberculosis and Tuberculosis
Infection in Adults and Children, " published by the
American Thoracic Society, which is incorporated
by reference including subsequent amendments and
editions. Copies of this publication are available
by contacting the Department of Environment,
Health, and Natural Resources, Tuberculosis
Control Branch, Post Office Box 27687, Raleigh,

NORTH CAROLINA REGISTER

July 1, 1994

454

PROPOSED RULES

North Carolina 27611-7687 at no charge.
However, liver function testing shall not be
required for persons under 35 years of age with no
symptoms of liver disease.

(d) The attending physician shall instruct all
patients treated for tuberculosis regarding the
potential side effects of the medications prescribed
and to promptly notify the physician if side effects
occur.

(e) Persons with pulmonary or laryngeal
tuberculosis who are known or reasonably
suspected to be infected with Mycobacterium
tuberculosis resistant to the usual medications used
for treatment shall be restricted to their homes, an
appropriate health care facility, or in some other
appropriate manner to prevent transmission until:

(1) they are free of cough; or

(2) three consecutive smears or cultures are
negative; or

(3) they have been compliant for at least
three weeks on medications to which
the organism is known to be susceptible
and have responded clinically.

(f) Persons with pulmonary or laryngeal
tuberculosis who are hospitalized, in prison, or a
longterm care facility, shall be placed in
respiratory isolation until:

(1) they are free of cough; or

(2) three consecutive smears or cultures are
negative; or

(3) been compliant for at least three weeks
on medications to which the organism
is reasonably thought to be susceptible
and have responded clinically.

(g) Persons with known or suspected pulmonary
tuberculosis who work in a health care or
institutional setting or who work in or attend child
daycare or with known or suspected laryngeal
tuberculosis shall be restricted to their homes, an
appropriate health care facility, or in some other
appropriate manner to prevent transmission until:

(1) they are free of cough; or

(2) three consecutive smears or cultures are
negative; or

(3) they have been compliant for at least
three weeks on medications to which
the organism is reasonably thought to
be susceptible and have responded
clinically.

(h) Persons known to be infected with
tuberculosis who are over 50 years of age and
have risk factors for HIV infection and those 50
years of age and younger shall be tested for HIV
infection.

(i) At least two of the following skin test

antigens shall be used as controls for anergy when

a TB skin test is administered to a person known
to be infected with HIV and who has a CD4+
level less than 500 cells/mm3 or 19%:

(1) Mumps;

(2) Candida; or

(3) Tetanus toxoid.

(j) Laboratories that culture sputum or other
body fluids or tissues for Mycobacteria shall
measure direct susceptibilities as the percent of
colonies resistant to at least isoniazid. rifampin.
streptomycin, and ethambutol on all initial

specimens submitted for culture that are positive
for AFB on smear.

Statutory Authority G.S. 130A-135; 130A-144.

.0208 CONTROL MEASURES -

SHIGELLOSIS AND E. coli 0157:H7

The following are the control measures for

shigellosis and E. coli 0157:H7:

(1) When a case occurs in a person who

attends or works in a day care center:

la}

All persons who attend the center and
who have or have had diarrhea in the
previous month, all classroom contacts

of the case, and all staff in the center
shall be immediately cultured:
(b) An investigation shall be conducted to
identify other possible cases throughout
the center;

Id)

All persons with disease or suspected
disease shall be cohorted;
Staff shall be assigned to care for
children in the cohorted group and may
not care for children outside the
cohorted group until they are
reassigned, without symptoms and have

had two negative cultures at least 24
hours apart and 48 hours off antibiotics

ie)

ifi

i£l

Cases and suspected cases may be

released from cohorting when two

negative cultures have been obtained at

least 24 hours apart and 48 hours off

antibiotics;

All persons with shigellosis shall be

treated with an antibiotic listed for

shigellosis in Control of Communicable

Diseases in Man;

All persons with known or suspected

shigellosis or JL coH 0157:H7 shall be

excluded from foodhandling until two

negative cultures have been obtained at

least 24 hours apart and 48 hours off

antibiotics;

455

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July 1, 1994

PROPOSED RULES

(h) Persons who are infected or suspected
of being infected with shigella or L\
coli 0157:H7 and who are well enough
to attend shall not be excluded from
day care.

(2) When a case or suspected case occurs in
a foodhandler or health care worker:

(a) The person shall be excluded from
foodhandling or direct patient care until
symptoms resolve and two negative
cultures have been obtained at least 24
hours apart and 48 hours off antibiotics:

(b) However, health care workers may
return to direct patient care if they are
asymptomatic, practice good hygiene
and do not care for high risk patients
(e-g- neonates, immunocompromised
patients).

(3) When a case of shigella or TL coli
0157:H7 occurs, all household and other
close contacts who attend or work in day
care or who are foodhandlers or health
care workers shall be interviewed for
symptoms in the previous month and, if
symptomatic, cultured.

Statutory Authority G.S. 130A-135; 130A-144.

.0209 LABORATORY TESTING

All laboratories are required to do the following:

(1) When Neisseria meningitis is isolated,
test the organism for specific serogroup
or send the isolate to the State Public
Health Laboratory for serogrouping; and

(2) When a stool culture is requested on a
specimen with occult blood or from a
person with bloody diarrhea, culture the
stool for E. coli 0157:H7 or send the
specimen to the State Public Health
Laboratory.

Statutory Authority G.S. 130A-139.

SECTION .0400 - IMMUNIZATION

0401 DOSAGE AND AGE REQUIREMENTS
FOR IMMUNIZATION

(a) Every individual in North Carolina required
to be immunized pursuant to G.S. 130A-152
through 130A-157 shall be immunized against the
following diseases by receiving the specified
minimum doses of vaccines by the specified ages:
(1) diphtheria, tetanus, and whooping
cough vaccine — five doses: three doses
by age one year seven months and two

booster doses, one in the second year of
life by age 19 months and the second
on or after the fourth birthday and
before enrolling in school (K-l) for the
first time;

(2) oral poliomyelitis vaccine- - three doses
of trivalcnt type by age two year s four
doses: two doses of trivalent type by
age five months: a third dose trivalent
type by age 19 months and a booster
dose of trivalent type on or after the
fourth birthday and before enrolling in
school (K-l) for the first time; two
doses of enhanced-potency inactivated
poliomyelitis vaccine may be substituted
for two doses of oral poliomyelitis
vaccine;

(3) measles (rubeola) , mumps and rubella
vaccine — two doses of live, attenuated
vaccine* administered at least 30 days
apart: one dose by age two years on or
after age 12 months and before age 16
months and a second dose before
enrolling in school (K-l) for the first
time;

(4) rubella vaccine ~ one dose of live,
attenuated vaccine on or after age 12
months and before age 16 months;

(5) mumps vaccine ~ one dose of live,
attenuated vaccine administered on or
after age 12 months and before age 16
months;

{4) £6} Hemophilus Haemophilus

influenzae, b, conjugate vaccine — three
doses of HbOC or two doses of
PRP-OMP by age eae — year seven
months and a booster dose of any type
by the second birthday age 16 months ;
and

(7) hepatitis B vaccine — three doses
by age one year.
Notwithstanding the requirements of
Paragraph (a) of this Rule:

(1) An individual who has attained his or
her seventh birthday without having
been immunized against whooping
cough shall not be required to be
immunized with a vaccine preparation
containing whooping cough antigen.

(2) An individual who has been
documented by serologic testing to have
a protective antibody titer against
rubella shall not be required to receive
rubella vaccine.

(3) An individual who has been diagnosed

(b)

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NORTH CAROLINA REGISTER

July 1, 1994

456

PROPOSED RULES

prior to January 1, 1994, by a
physician licensed to practice medicine
as having measles (rubeola) disease
shall not be required to receive measles
vaccine.

(4) An individual attending school who has
attained his or her 18th birthday shall
not be required to receive oral polio
vaccine.

(5) An individual born prior to 1957 shall
not be required to receive measles
vaccine. An individual who has
attained his or her fiftieth birthday shall
not be required to receive rubella
vaccine. An individual who entered a
college or university after his or her
thirtieth birthday and before February
1, 1989 shall not be required to meet
the requirement for rubella vaccine.

(6) Except as provided in Subparagraph

<b)<8) ef — this Rale^ the The

requirements for mumps vaccine^— ftfid
for booster do s es of diphtheria, tetanus,
and whooping cough vaccine and oral
poliomyelitis vaccine, shall not apply to
individuals who enrolled for the first
time in the first grade before July 1,

1987 or in college or university before
July 1. 1994.

(7) Individuals who receive the first booster
dose of diphtheria, tetanus, and
whooping cough vaccine on or after the
fourth birthday shall not be required to
have a second booster dose.
Individuals who receive the third dose
of oral poliomyelitis vaccine on or after
the fourth birthday shall not be required
to receive a fourth dose.

(8) Individual s — attending — a — college — ©f
university — s hall — be — required — te — have
three dosco of diphtheria/tetanu s toxoid
of which one must have been within the
last ten year s . The requirements for
booster doses of diphtheria, tetanus,
and whooping cough vaccine and oral
poliomyelitis vaccine shall not a pply to
individuals who enrolled for the first
time in the first grade before July j^
1987. However, individuals attending
a college or university shall be required
to have three doses of diphtheria/tetanus
toxoid of which one must have been
within the last 10 years.

(9) Individuals born before October 1,

1988 shall not be required to be

vaccinated against Hemophilu s
Haemophilus influenzae, b. Individuals
who receive the first dose of
Hemophilus Haemophilus influenzae, b,
vaccine on or after 12 months of age
and before 15 months of age shall be
required to have only two doses of
HbOC or PRP-OMP. Individuals who
receive the first dose of Hemophilu s

Haemophilus influenzae, b, vaccine on
or after 15 months of age shall be
required to have only one dose of any
of the Hemophilu s Haemophilus

(10)

(ID

influenzae conjugate vaccines, including
PRP-D. However, no individual who
has passed their fifth birthday shall be
required to be vaccinated against
Hemophilu s Haemophilus influenzae, b.
Individuals born on or before July 1,
1994 shall not be required to be
vaccinated against hepatitis B.
Except as provided in Subparagraph (b)

(12) of this Rule, the The requirement
for a second dose of measles , mump s

and rubella vaccine shall not apply to
individuals who enroll in school (K-l)
or in college or university for the first
time on or before July 1, 1994.

fi3) Individual s who enroll in a college or

university for the first time after July 1
199 4 shall be required to have a second

dose of measles, mumps and rubella
vaccine.

Statutory Authority G.S. 130A-1 52(c); 130A-155.1.
******************

Notice is hereby given in accordance with G.S.
150B-21.2 that EHNR - Commission for Health
Services intends to amend rules cited as ISA
NCAC 19C.0601 - .0607, and adopt rule cited as
15A NCAC 19C .0608.

1 he proposed effective date of this action is
October 1, 1994.

1 he public hearing will be conducted at 1:30
p.m. on July 21, 1994 at the Archdale Building.
Ground Floor Hearing Room, 512 North Salisbury
Street, Raleigh, N. C.

457

9:7

NORTH CAROLINA REGISTER

July 1, 1994

PROPOSED RULES

Reason for Proposed Action:
ISA NCAC 19C .0601 - These consist of defini-
tions for clarification purposes.
ISA NCAC 19C .0602 - Most of these revisions
are for clarification purposes. Have also detailed
and clarified air monitor accreditation require-
ments. Revised application form information
requirements because the program is incorporating
an Accreditation Photo ID Card system. Clarified
supervising air monitor notification requirements
for accredited air monitors that are not ClHs.
ISA NCAC 19C .0603 - Enables the Branch to
evaluate course curriculum and examination for
courses that have EPA or EPA-state approval.
Requires successful completion of an examination
for refresher courses in order to improve the
quality of refresher training. Requires training
providers to meet requirements to promote reci-
procity within EPA Region IV and to conform to
EPA guidelines for training requirements. Revised
notification requirements because notification is
necessary to review applications for possible
accreditation fraudulence and to promote reciproc-
ity within EPA Region IV.

ISA NCAC 19C .0604 - Clarifies management
plan requirements. Adds a submittal time frame
for reinspection plans needed to ensure that rein-
spections are performed in-line with EPA AHERA
requirements.

15A NCAC 19C .0605 - Clarifies existing notifica-
tion requirements for different types of removals
and existing revision notification requirements.
Requires an accredited supervisor to supervise
removal activities, which is already a requirement;
however, it is not currently written in the rules as
they exist.

ISA NCAC 19C .0606 - Reduces the fees for
removal of floor tiles and ceiling tiles from $. 15
per square foot or 1% of contract price, whichever
is greater to $.10 per square foot or 1% of con-
tract price, whichever is greater. Have also
eliminated the permit fee requirement for residing
homeowners. Clarifies demolition for permit fee
purposes.

15A NCAC 19C .0607 - Adds air sampling fre-
quency and need basis requirements. Adds addi-
tional analysis requirements and specifies laborato-
ry proficiency requirements for sample analysis.
Addresses possible conflict of interest between air
monitor and contractor for the benefit of the
building owner. Addresses the need for prepara-
'ion of an abatement project monitoring plan for
'he benefit of the building owner. Addresses air
nonitor accountability for all visits and sampling

conducted on any project. These revisions are
needed to ensure that all areas are properly
monitored for exposure levels during the removal
as well as ensure that all areas are properly
cleared after completion of the removal in order to
prevent unnecessary asbestos exposure for the
workers as well as the public.
ISA NCAC 19C .0608 - This proposed new rule
addresses instructor qualifications. The rules do
not currently address this need. Federal regula-
tions require that instructors be qualified; there-
fore, this rule is needed in order to ensure that
courses are conducted by qualified instructors as
required by EPA. Also, to promote reciprocity
within EPA Region IV states.

Ksomment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to Grady L.
Balentine, Department of Justice, P. O. Box 629,
Raleigh, NC 27602-0629. All written comments
must be received by August 1, 1994. Persons who
wish to speak at the hearing should contact Mr.
Balentine at (919) 733-4618. Persons who call in
advance of the hearing will be given priority on
the speaker 's list. Oral presentation lengths may
be limited depending on the number of people that
wish to speak at the public hearing. Only persons
who have made comments at a public hearing or
who have submitted written comments will be
allowed to speak at the Commission meeting.
Comments made at the Commission meeting must
either clarify previous comments or proposed
changes from staff pursuant to comments made
during the public hearing process.

CHAPTER 19 - HEALTH: EPIDEMIOLOGY

SUBCHAPTER 19C - OCCUPATIONAL

NORTH CAROLINA REGISTER

July 1, 1994

458

PROPOSED RULES

HEALTH

SECTION .0600 - ASBESTOS HAZARD
MANAGEMENT PROGRAM

.0601 GENERAL

(a) The definitions contained in G.S. 130A-444
and the following definitions shall apply
throughout this Section:

(1) "Abatement Designer" means a person
who is directly responsible for planning
all phases of an asbestos abatement
design from abatement site preparation
through complete disassembly of all
abatement area barriers. In addition to
meeting the accreditation requirements
of Rule .0602(c)(5) of this Section, the
abatement designer may be subject to
the licensure requirements for a
Registered Architect as defined in G.S.
83A or a Professional Engineer as
defined in G.S. 89C.

(2) "Abatement Project Monitoring Plan"
means a written project-specific plan
for conducting visual inspections and
ambient and clearance air sampling.

(3) f3) "Air Monitor" means a person who
performs visual in s pections, takes air
samples — fef — abatement — clearance
activities or takes ambient air samples
in buildings implements the abatement
project monitoring plan. collects
ambient and clearance air samples,
performs visual inspections, or
monitors and evaluates asbestos
abatement projects.

(4) "Asbestos Abatement Design" means a
written or graphic plan prepared by an
accredited abatement designer
specifying how an asbestos abatement
project will be performed, and includes,
but is not limited to. scope of work and
technical specifications. The asbestos
abatement designer's signature and
accreditation number shall be on all
such abatement designs.

(5) "Completion Date" means the date on
which all activities on a permitted
asbestos removal requiring the use of
accredited workers and supervisors are
complete. including the complete
disassembly of all removal area
barriers.

(6) "Emergency Renovation Operation" as
defined in 40 CFR Part 61.141.

18}

121

(10)

Oil

(12)

(13)

(14)
(15)

(16)

"Inspector" means a person who
examines buildings for the presence of
asbestos containing materials, collects
bulk samples or conducts physical

assessments of the asbestos containing

materials.

"Installation" means any building or

structure or group of buildings or

structures under the control of the same

owner or operator.

t±) "Management Consultant" means a

persons who performs only

administration or oversight services

before, during or after asbestos

abatement activities.

"Management Planner" means a person

who interprets inspection reports.

conducts hazard assessments of asbestos

containing materials or prepares written

management plans.

"Nonscheduled Asbestos Removal"

means an asbestos removal required by
the routine failure of equipment, which
is expected to occur within a given
period based on past operating
experience, but for which an exact date
cannot be predicted.
"Person" — means — as — defined in G.S.

130A2(7).

(3) "Program" means the Asbestos
Hazard Management Branch within the
NC Department of Environment,
Health, and Natural Resources.

(4) "Public Area" means as defined in
G.S. 130A-444(7). Any area to which
access by the general public is usually
prohibited, or is usually limited to
access by escort only, shall not
constitute a "public area. "
"Regulated Asbestos Containing

Material" as defined in 40 CFR Part

61.141.

"Start Date" means the date on which

activities on a permitted asbestos

removal project requiring the use of
accredited workers and supervisors

begin, including removal area isolation

and preparation or any other activity

which may disturb asbestos containing

materials.

"Supervising Air Monitor" means a

person who prepares a written

abatement project monitoring plan and

implements the plan or ensures that the

plan is implemented by an air monitor

459

9:7

NORTH CAROLINA REGISTER

July 1, 1994

PROPOSED RULES

working under his supervision. The
supervising air monitor directs,
coordinates and a pproves all activities
of air monitors working under his
supervision.

(17) "Supervisor" means a person who is a
'competent person' as defined in 29
CFR 1926.58fb') and adopted by JJ
NCAC 7C .0101, and who is an
'on-site representative' as defined in
40 CFR Part 61.145(c)(8). and who
performs the duties specified therein.

(18) "Under the direct supervision" means
working under the immediate guidance
of an accredited individual who is
responsible for all activities performed.

(19) "Worker" means a person who
performs asbestos abatement under the
direct supervision of an accredited
supervisor.

(20) (6) "Working day" means Monday
through Friday. Holidays falling on
any of these days are included in the
definition.

(b) The Aabefltos Hazard Emergency Response
Act, P.L. 99 519 and the Environmental Protection
Agency rules 4 CFR Part 763 and accompanying
appendices, — are — adopted — by — reference — m
accordance — with — Gt&. — 150B 1 4 (c). Asbestos
management activities conducted pursuant to this
Section shall comply with "AHERA" as defined in
G.S. 130A-444(1) and 40 CFR Part 763, Subpart
E and Appendices, as a pplicable. 40 CFR Part
763. Subpart E is hereby incorporated by
reference, including any subsequent amendments
and editions. This document is available for
inspection at the Department of Environment.
Health, and Natural Resources. Asbestos Hazard
Management Branch. 441 North Harrington Street.

Raleigh. North Carolina 27603. Copies may be
obtained from the Government Printing Office by
writing to the Superintendent of Documents.
Government Printing Office. P.O. Box 371954,
Pittsburgh. PA 15250-7954. at a cost of
twenty-six dollars ($26.00).

Statutory Authority G.S. 130A-5(3); P.L. 99-519.

.0602 ACCREDITATION

(a) No person shall perform asbestos
management activities until that person has been
accredited by the Program in the appropriate
accreditation category, except as provided for in
G.S. 130A-447, (b) and (c).

(b) An applicant for accreditation shall meet the

provisions of the "EPA Model Contractor
Accreditation Plan" contained in 40 CFR Part 763
(Subpart E, appendix Appendix C) and has
successfully completed applicable training courses
approved by the Program pursuant to Rule .0603
of this Section.

(c) In addition to the requirements in Paragraph
(b) of this Rule , an applicant^ other than for the
worker category, shall meet the following:

(1) an applicant for initial accreditation
shall have successfully completed an
approved initial training course for the
specific discipline within the 12 months
immediately preceding application^ e^
if If initial training was completed more
than 12 months prior to application, the
applicant shall have successfully
completed an approved refresher
training course for the specific
discipline at least every 44 24 months
from the date of completion of initial
training to the date of application;

(2) an inspector shall have:

(A) a high school diploma or equivalent;
and

(B) at least three months of asbestos
related experience as^ or under the
direct supervision of A an accredited
inspector , or at least one month of

employment as aa accredited

s upervi s or, — or at least — s ix month s
employment as an accredited worker ,
or equivalent experience;

(3) a management planner shall have a high
school diploma or equivalent and shall
be an accredited inspector;

(4) a supervisor shall have:

(A) a high school diploma or equivalent;
except that this requirement shall not
apply to supervisors that were
accredited on November 1, 1989; and

(B) at least three months of asbestos
related experience as, or under the
direct supervision of, an accredited
supervisor or at least three months
employment as an asbestos work , or
equivalent experience;

(5) an abatement designer shall have:

(A) a high school diploma or equivalent;
and

(B) at least three months of asbestos
related experience as, or under the
direct supervision of, an accredited
abatement designer or at least three
months employment as an accredited

9:7

NORTH CAROLINA REGISTER

July 1, 1994

460

PROPOSED RULES

supervisor , or equivalent experience;

(6) a management consultant shall:

(A) be a professional anginecr, registered
architect — ef — a — certified — indu s trial

hygicnist ef have few years

experience as an obatement designer
ef — s upervi s or have a high school
diploma or equivalent;

(B) have one year experience in asbestos
related work within the past four
years aad — be — accredited — as — a
management planner and designer. ;
and

(C) meet all initial and refresher training
requirements of this Section for
inspector and management planner, as
well as either supervisor or abatement
designer;

(7) an air monitor shall meet the following
requirements:

(A) Education and Work Experience:

£i) a high school diploma or
equivalent;

(ii) three months of asbestos air
monitoring experience as, or
under the direct supervision of, an
accredited air monitor or
equivalent within 12 months prior
to a pplying for accreditation;

(B) Training Requirements:

(i) complete a Program approved
NIOSH 582 or Program approved
NIOSH 582 equivalent and meet
the initial and refresher training
requirements of this Rule for
supervisors. A Program a pproved
project monitor refresher course
may be substituted for the
supervisor refresher course; or
meet the initial and refresher
training requirements of this Rule
for a Program approved five-day
project monitor course and a
Program approved annual
refresher course;

air monitors with a valid
accreditation on October 1^ 1994
shall have until October 1_, 1995
to meet the training requirements
for air monitors set forth in this
Paragraph;
(C) Professional Status:

£i] An air monitor accredited on or
after February J_i 1991. or an air
monitor accredited prior to that

date who has not continuously
maintained accreditation, shall be
a Certified Industrial Hygienist or
work only under a Certified
Industrial Hygienist who is an
accredited air monitor, who
serves as the supervising air
monitor; or
(ii) An air monitor accredited prior to
February l± 1991. who has
continuously maintained
accreditation shall be a Certified
Industrial Hygienist. Professional
Engineer, or Registered Architect.
or work only under a Certified
Industrial Hygienist. Professional
Engineer, or Registered Architect
who is accredited as an air
monitor, and who serves as a
supervising air monitor.
{A) — until February 1, 1991, be a certified

industrial hygicni s t, professional

engineer, or registered architect, or
work only under the supervi s ion of a

certified indu s trial hygieni s t,

professional — engineer, — or registered
architect that i s accredited a s an air
monitor. — On or after February 1,
1991, — as — air monitor s hall be a
certified industrial hygicni s t or work
only — ufldef — the — supervision — of a
certified industrial hygi e ni s t that is on

accredited — mr — monitor. The

s upervi s ing aif monitor sfeaH

coordinate and sign off on all phases
of the air monitoring project. — The
s upervi s ing air monitor may be a
contract consultant. Thi s requirement

s hall net — apply te accredited

supervising air monitor s meeting th e
provi s ion s — ef — Subparagraphs
(c)(7)(B) (D) of this Rule as of
February 1, 1991;
{B) — have completed a Program approved
National — Institute — ef- — Occupational
Sofcty and Health 5 8 2 training cours e
or Program approved equivalent;
{€) — have — throe — month s — asbestos — aif
monitoring — related — experienc e — er
equivalent within 12 month s prior to
applying for accreditation; and
(©) — have — a — high — s chool — diploma — ef
equivalent.
(d) To obtain accreditation, the applicant shall
submit, or cause to be submitted, to the Program

461

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PROPOSED RULES

the following information te — the Program on
application forma provided by the Program :

(1) a completed a pplication on a form

provided by the Program with the

following information:

(A) £B full name and social security
number of applicant;

{2) name, address and telephone number of

employer;

Q) discipline(s) applied for;

{4) date(s) of training cour s e( s ) for each

discipline;

{§) name of course attended;

{6) training agency name and address;

(B) address, including city, state, zip
code, and telephone number;
date of birth, sex, height, and weight;

mi
m

discipline applied for;

name, address, and telephone number

of employer;

(F) training agency attended;

(G) name of training course completed;
(H) dates of course attended;

(2) two current 1 U inch x VA inch color
photographs of the a pplicant with
a pplicant's name and social security
number printed on the back;

(3) (7) confirmation of completion of an
approved initial or refresher training
course from the training agency; the
confirmation shall be in the form of an
original certificate of completion of the
approved training course bearing the
training agency's official seal, or an
original letter from the training agency
confirming completion of the course on
training agency letterhead, or an
original letter from the training agency
listing names of persons who have
successfully completed the training
course, with the applicant's name
included, on the training agency
letterhead;

£4} {8) when education is a requirement, a
copy of the diploma or other written
documentation; and

(5) (9) when experience is a requirement,
work history documenting asbestos
related experience, including employer
name, address and phone number;
positions held; and dates when the
positions were held-r ; and

(6) when applicants for initial air monitor
accreditation are working under a
supervising air monitor pursuant to Part

(c)(7)(B) of this Rule, the supervising
air monitor shall submit an original,
signed letter acknowledging
responsibility for the applicant's air
monitoring activities. The a pplicant
shall ensure that a new letter is
submitted to the Program any time the
information in the letter currently on
file is no longer accurate.

(e) All accreditations , including accreditations
issued prior to October 10, 19 88 , shall expire at
the end of the 1 2th month following completion of
required initial or refresher training. Work
performed after the 12th month prior to
reaccreditation shall constitute a violation of this
Rule. To be reaccredited, an applicant shall have
successfully completed the required refresher
training course within 44 24 months after the
initial or refresher training course. An applicant
for reaccreditation shall also submit information
specified in Subparagraphs (d)(l)-(d)ffl(6) of this
Rule. If a person fails to obtain roacoroditation the
required training within twe \2 calendar months
after the expiration date of original accreditation,
that person may be accredited only by meeting the
requirements of Paragraphs (b), (c), and (d) of this
Rule.

(f) All accredited persons shall be assigned an
accreditation number and issued a
photo-identification card by the program Program .

{g) Upon request, — a person accredited by

another state s hall be accredited by the program if
that state's accreditation program is at least as
s tringent and as comprehen s ive as the accreditation
program establi s hed by the s e rules.

{b) {gj In accordance with G.S. 130A-23, the
Program may revoke accreditation or
reaccreditation for any violation of G.S. 130A,
Article 19 or any of the these rules Rules of thi s
Section , or upon finding that its issuance was
based upon incorrect or inadequate information
that materially affected the decision to issue
accreditation or reaccreditation. The Program may
also revoke accreditation or reaccreditation upon a
finding that the accredited person has violated any
s tandard requirement referenced in Rule .0605(e)
of this Section. A person whose accreditation is
revoked becau s e of fraudulent misrepresentation s
or because of violations that create a s ignificant
public health haza fd shall not be authorized to
reapply for accreditation before six months for two
years after the revocation and must shall repeat the
initial training course and other requirements as
shown set out in Paragraphs (b), (c), and (d) of
this Rule.

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462

PROPOSED RULES

Statutory Authority G.S. 130A-5(3); 130A-447;
PL. 99-519.

.0603 APPROVAL OF TRAINING COURSES

(a) Pursuant to Rule .0602 of this Section ,
applicants for accreditation and reaccreditation are
required to successfully complete training courses
approved by the Program. Training courses: fe
order to be approved by the Program, training
programs shall meet the following requirements:

(1) Training courses meeting Meeting the
requirements of 40 CFR Part 763,
Subpart E, Appendix C and approved
for a specific training provider by the
Environmental Protection Agency or by
a state with an Environmental
Protection Agency-approved
accreditation program^ or by a state that
has a written reciprocating agreement
with the Program and meeting the
requirements under Paragraph (g) of
this Rule shall be deemed approved by
the Program unless approval is
suspended or revoked in accordance
with Paragraph (g) £iQ of this Rule; er

(2) Training — courses — covered Required
under 40 CFR Part 763, Subpart E,
Appendix C and having no prior
Program approval as specified in
Subparagraph (a)(1) of this Rule shall
meet the requirements of 40 CFR Part
763, Subpart E, Appendix C, I and III,
Paragraph s (b) and (c) and Paragraphs
(b)-(f) of this Rule; or

(3) Training cour s e s &e-t covered

Recommended under 40 CFR Part
763, Subpart E, Appendix C shall meet
the requirements of Paragraph — (e)
Paragraphs (b)-(f) of this Ruler j or

(4) Other than those covered in
Subparagraphs (l)-(3) of this Paragraph
required for North Carolina
accreditation purposes shall meet the
requirements of Paragraphs (c)-(f) of
this Rule.

A — list — of approved — training — course s — shall — be
available from the Program.

(b) Refresher training courses shall review and
discuss changes in the Federal and State
regulations, developments in the state-of-the-art
procedures, and key aspects of the initial courses
outlined under 40 CFR Part 763. Subpart E,
Appendix C include a review of the following
key aspects of the initial training course:

i4j the refresher training courses for all

disciplines shall include a review o f
health effects of asbestos, reopiratory
protection, — and — per s onal — protective
equipment;

£2) the — refre s her — training — course — fer

inspector shall — include a review of
record keeping, writing the inapootion
report, — inspecting — fer — friable — aed
non friable asbestos containing material,
and assessing the condition of asbestos
containing building material s ;

(£) the — refresher — training — eewse — fef

management planner shall include a
review of record keeping, management

1 a n

content

hazard

assessment, determining an operations
and maintenance plan, and selection of
control options;

(4) the — refresher — training — eewse — fer

abatement project designer shall include
a — review — ef- — de s igning — abatement
solution s , budgeting and east

considerations for work in
building s and writing

estimation,

occupied

abatement s pecification s ;

(5) the — refresher — training — course — fef

supervisor shall include a review of
state of the art — work — practices, — air
monitoring and supervisory techniques;

ftfio

{6} the — refresher — training — course — fer

abatement — worker — shall — include — a

review ef- state of the art work

praotioc s , per s onal hygiene, and

additional s afety hozards r
(c) At the completion of the refresher training
courses in all disciplines, the training provider
shall administer a written closed book examination.
a pproved by the Program. The requirements for
the examination shall consist of a minimum of 50
multiple choice questions. For successful
completion of the course the applicant shall pass
the exam with a minimum score of 70 percent.

{e) {d} Training courses shall be evaluated for
approval by the Program for course length,
curriculum, training methods, instructors'
qualifications, instructors' teaching effectiveness,
technical accuracy of written materials and
instruction, examination, and training certificate.
Training course provider s — applying for cours e
approval — shaH — submit — the — informati efi — and
documentation s pecified on an application form
provided by the Program. The evaluation will be
conducted using 40 CFR Part 763, Subpart JL
A ppendix C or NIOSH 582 curriculum, as

463

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NORTH CAROLINA REGISTER

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PROPOSED RULES

ap plicable, which are hereby incorporated by.
reference, including any subsequent amendments
and editions. These documents are available for
inspection at the Department of Environment.
Health, and Natural Resources. Asbestos Hazard
Management Branch. 441 North Harrington Street.
Raleigh. North Carolina 27603. Copies of 40
CFR Part 763. Subpart E± A ppendix C may be
obtained by. writing to the Superintendent of
Documents. Government Printing Office. P.O.
Box 371954, Pittsburgh. PA 15250-7954. at a cost
of twenty-six dollars ($26.00). Copies of the
NIOSH 582 curriculum may be obtained by
writing the Department of Environment. Health,
and Natural Resources. Asbestos Hazard
Management Branch. P.O. Box 27687. Raleigh.
NC 27611. at a cost of thirty-five dollars
($35.00).

(e) Training course providers shall submit the
following for evaluation and approval by the
Program:

(1) a completed application on a form
provided by the Program, along with
su pporting documentation. The form
and su pporting documentation shall
include the following:

(A) name, address, and telephone number
of the training provider, and name
and signature of the contact person:

(B) course title, location and the language
in which the course is to be taught:

(C) a student manual and an instructor
manual for each course and a content
checklist that identifies and locates
sections of the manual where required
topics are covered:
course agenda:

a copy or description of all
audio/visual materials used:
a description of each hands-on
training activity;

a copy of a sample exam;
a sample certificate with the following
information: and
(i) Name and social security number

of student;
(ii) Training course title specifying
initial or refresher;
Inclusive dates of course and

applicable examination;
Statement that the

student

completed the course and passed
any examination required;
Unique certificate number as required;
For courses covered under 40

CFR Part 763. Subpart JL
A ppendix C^ certificate expiration
date that is one year after the date
the course was completed and the
a pplicable examination passed;
(vii) Printed name and signature of the
training course administrator and
printed name of the principal
instructor:
(viii) Name. address. and phone

number of the training provider;
(ix) Training course location; and
(x) A statement that the person
receiving the certificate has
completed the requisite training
for asbestos accreditation under
Title II of the Toxic Substances
Control Act;
(D a list of training currently being
provided.
(2) A list of instructors and their
qualifications in accordance with Rule
.0608 of this Section.

(f) Contingent a pproval shall be granted by the
Program if the a pplication and su pporting
documentation meet the criteria of Rule .0603(d)
and (e) of this Section, except for technical
accuracy of instruction and instructor
effectiveness. Full a pproval shall be granted by
the Program to a course with contingent a pproval
after successful completion of an on-site audit of
the course. The on-site audit shall include, but not
be limited to. an evaluation of the following:

(1) instructor effectiveness;

(2) technical accuracy;

(3) course administration; and

(4) course content.

(g) {&) Training course providers shall perform
the following in order to maintain approval:

(1) Issue a certificate of training meeting
the requirements of Part (e)(1)(H) of
this Rule to any student who completes
the required training and passes the
applicable examination. The certificate,
to be s ubmitted to the Program for
approval, s hall include;
{A) — Name of s tudent;
{B) — Training course title;
{€-) — Inclu s ive — dates — ef- — course — and

applicable examination;
{D) — Statement that the s tudent completed

the ooursc aed passed aey

examination required;
fE) — Certificate number a s required;
fF) — For ooureee covered under 4 CFR

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NORTH CAROLINA REGISTER

July 1, 1994

464

PROPOSED RULES

<&-

14&-, — Subpart — E; — Appendix — Gj
certificate expiration date that i s on e
year after the date course completed
and applicable examination pas s ed;
Printed name and signature of training

course administrator or printed name
of principle instructor; and
fH) — Name, address, and phone number of
the training provider.

(2) Submit to the Program written notice of
intention to conduct a training course
for North Carolina asbestos
accreditation purposes if the course is
to be taught in North Carolina or if
requested by the Program . Notices for
att training courses, except asbestos
worker, shall be postmarked tea K)
working days before the training course
begins. Notices for asbestos worker
training course courses shall be
postmarked five working days before
the training course begins. If the
training course is cancelled, notify the
Program at least 24 hours before the
scheduled start date. Notification shall
be made using a form provided by the
Program and shall include the
following:

(A) Training provider name, address,
phone number and contact person;

(B) Training course title;

(D) Start and completion times;

(E) Identify whether the course is public
offering, contract training, or for the
training provider's employees; and

(F) Location and directions to course
facilityr ; and

(G) Language in which the course is
taught.

(3) Notify the Program, in writing, at least
10 working days prior to the scheduled
course start date, of any changes to
course length, curriculum, training
methods, training manual or materials,
instructors, examination, training
certificate, training course administrator
or contact person. The changes must
be a pproved by the Program in order
for the course to be acceptable for
accreditation purposes.

(4) Submit to the Program information and
documentation for any course approved
under Subparagraph (a)(l)-(3) of this

15}

ffil
IE)

Rule if requested by the Program.

Ensure that all instructors meet the

requirements of Rule .0608 of this

Section.

Ensure that all training courses covered

under this Rule meet the following

requirements:
Initial training courses shall have a
minimum of four students, and all
training courses a maximum of 40
students enrolled and participating:
A day of training shall include at least
six and one-half hours of direct
instruction. including classroom-
hands-on training or field trips:
Regular employment and instruction
time shall not exceed 12 hours in a 24
hour period;

A training course shall be completed
within a two-week period;
All instructors and students shall be
fluent in the language in which the
course is being taught;
An interpreter shall not be used;
U pgrading worker accreditation to
that of supervisor by completing only
one day of initial training is not
permitted. Separate initial training as
a supervisor is required;
A single instructor is allowed only for
a worker course. Other initial

disciplines shall have a minimum of
two instructors;
(T) Instructor ratio for hands-on shall be
no more than K) students per
instructor;
(J) All course materials shall be in the
language in which the course is being
taught;
(TO Each training course shall be

discipline specific; and
(L) Students shall be allowed to take an
examination no more than twice for
each course. After two failures, the
student shall retake the full course
before being allowed to retest.
Verify, by photo identification, the
identity of any student requesting
training.

Training course providers shall permit
representatives to attend, evaluate and
any training course, take the course
examination and have access to records of training
courses without charge or hindrance to the
Program for the purpose of evaluating compliance

ffi

Ihife)
Program
monitor

465

9:7

NORTH CAROLINA REGISTER

July 1, 1994

PROPOSED RULES

with 40 CFR Part 763, Subpart E, Appendix C
and these Rules. The Program shall perform
periodic and unannounced on-site audits of training
courses.

£j] (f) In accordance with G.S. 130A-23, the
Program may suspend or revoke approval for a
training course for violation of this Rule and shall
suspend or revoke approval upon suspension or
revocation of approval by the Environmental
Protection Agency or by any state with an
Environmental Protection Agency-approved
accreditation program.

Statutory Authority G.S. 130A-5(3); 130A-447;
P.L. 99-519.

,0604 ASBESTOS MANAGEMENT PLANS

(a) All Local Education Agencies as defined in
40 CFR Part 763, Subpart E shall submit Asbestos

Management Plans for school buildings to the
Program on forms provided by the Program.
Asbestos Management Plans shall meet the
requirements contained in 40 CFR Part 763.,
Subpart E.

(b) In addition to the requirements in Paragraph
(a) of this Rule, the management plan shall
identify, locate, classify, quantify, and assess
asbestos containing building materials, comply
with the following;

Q) AH — Asbestos — Containing — Building

Material s s hall be identified, located,
classified and as s essed; and

(3) The — Local — Education — Agency — s hall

notify the Program of asbestos removal
projects within ten working day s after
the removal area has been cleared for
occupancy.

(c) All Local Education Agencies shall submit to
he Program^ within 120 days of the actual on-site
einspection. the Asbestos Hazard Emergency

Response Act reinspection reports as required
inder 40 CFR Part 763, Subpart E. These reports
hall be submitted on forms provided by the
> rogram.

(d) All inspectors and management planners
leveloping management plans and reinspection

eports under the Asbestos Hazard Emergency

Response Act shall comply with all requirements

)f 40 CFR Part 763. Subpart E and these Rules.

'tatutory Authority G.S. 130A-5(3); 130A-445;
>.L. 99-519.

0605 ASBESTOS CONTAINING

MATERIALS REMOVAL PERMITS

(a) No person shall remove more than 35 cubic
feet £1 cubic meter) . 160 square feet £15 square
meters) or 260 linear feet (80 linear meters) of
regulated asbestos containing material friable
asbestos containing material, or nonfriablc asbestos
containing material that may become friable during
handling , without a permit issued by the Program.
This permitting requirement is a pplicable to:

(1) individual removals that exceed the
threshold amounts addressed in this
Paragraph;

(2) nonscheduled asbestos removals
conducted at an installation that exceed
the threshold amounts addressed in this
Paragraph in a calendar year of January
1 through December 31.

Other asbestos abatement activities are exempt
from the permit requirements of G.S. 130A-449.

(b) All a pplications shall be made on a form
provided or a pproved by the Program. The
application submittal shall include at least all of the
information specified under the notification
requirements of 40 CFR Part 61.145(b). Subpart
M. Applications for asbestos containing material
removal permits shall adhere to the following
schedule, be submitted to and received by the
Program at least ton working days prior to the
s cheduled removal date. — However, for asbesto s
removal determined by the Program to require
immediate action, the ton day notice s hall not be
required.

(1) A pplications for individual asbestos
removals shall be postmarked or
received by the Program at least 10
working days prior to the scheduled
removal start date. For emergency
renovation operations involving
asbestos removal, the 10 working days
notice shall be waived. An a pplication
for a permit for the emergency
renovation operation shall be
postmarked or received by the Program
as early as possible before, but not later
than, the following working day.
Permit a pplications for emergency
renovation operations shall be
accompanied by a letter from the owner
or his representative explaining the
cause of the emergency;
Applications for nonscheduled asbestos
removals shall be postmarked or
received by the Program at least 10
working days before the start of the
calendar year and shall expire on or
before the last day of the same calendar

121

NORTH CAROLINA REGISTER

July 1, 1994

466

PROPOSED RULES

year. Reports of the amount of
regulated asbestos containing material
removed will be made at least quarterly
to the Program.
The application shall be made on a form provid e d
by the Program.

(c) Application for revision to an issued asbestos
removal permit shall be made by. the a pplicant in
writing on a form provided by the Program and
shall be received by the Program in accordance
with the following:

(1) Revision to a start date for a project
that will begin after the start date stated
in the approved permit shall be received
on or before the previously stated start
date or previously revised start date;

(2) Revision to a start date for a project
that will begin before the start date
stated in the approved permit shall be
received at least 10 working days
before the new start date:

(3) Revision to a completion date that will
be extended beyond the completion date
stated in the approved permit shall be
received by the original or previously
revised completion date:

(4) Revision to a completion date that will
be earlier than the completion date
stated in the a pproved permit shall be
received by the new completion date:
and

(5) Revisions to permits other than start or
completion dates shall be received on or
before the third working day after the
completion date of the removal.

{e) Revisions — fef — issued — asbesto s — removal

permits shall be as follow s :

{4-) Revisions for renovations

{A) — that will begin after the s tart date
contained — m — the — approved — permit,
shall be submitted to the Program by
the original s tart date;
{&) — that will begin on a date earlier than
the — start — date — contained — m — the
approved permit, shall be submitted to
the Program by written notice at least
tee — working — days — prior — te — the
beginning of asbesto s work.

(3) Revi s ion s to original completion date

s hall be submitted to the Program at
least one working day prior to the
revi s ed — completion — date — by — written

notice

Revisions

other — thafi stert aad

the Program within three working da y
by written notice. — In no event, ohall

removal covered by those Rulco atart o
a date other than the date contained }

the revised porra ifc-

(d) Copies of the following shall be maintaine

on site during removal activities and b

immediately available for review by the Program

(1) copy of the removal permit issued b

the Program and all revisions :

applicable asbestos abatement desi

specifications and contract documen t*

(2)

(3)

and

photo identification and aocrcditntio
inform ati eg cards issued by th
Program for all personnel performin
removal activities,
(e) All permitted removal activities shall b
conducted in accordance with the Toxic Substance

Control Act, 15 USC 2601 ; 29 CFR Port 1910 an

W26t 40 CFR Parts 61 and 763, Subpart E. wher
a pplicable. Notwithstanding permit suspension o
revocation for violation of these Rules
a pplicable federal regulations, a removal perm

shall also be subject to suspension or revocation
the removal activities are in violation
Department of Labor Rules, B NCAC 1C .010

et seq.. Department of Transportation Rules. 19;
NCAC 1 .0101 et seq., or Solid Wast

Management Rules, 15A NCAC 13 .0001 et se q
as determined by the agencies administering thos
Rules, respectively. Environmental — Protectio

Agency's Guidance — fe-r — oontrollin

Asbestos Containing — Material s — m — Building i

560/5 8 5 02 4 — except — paragraphs — 6 . 4 .1 — VistH

In s pection and 6. 4 .2 Air Tcoting; Environment!

Protection — Agency's — A — Guide — te — Respirator
Protection for the Asbestos Abatement Induatr

560 OPTS 86 001 except Part II C. Reapirato

Selection; — Environmental — Protection — Agency

Measuring — Airborne — Asbestos — Following — A
Abatement — Action, — 600/ 4 8 5 4 9; — America

National Standards In s titute's Respirator

Protection, Respirator Use, Physical Qualification
for Per s onnel, Z 88 .6 19 84 ; American Nationi

Standards — Institute's — Practices — fef — Rcspimtoi
Protection, — Z 88 .2 19 8 0; — American — Nationi

Standards Institute's Fundamentals Governing th

Design and Operation of Local Exhau s t Systcm i
Z9.2 1979; 4 9 CFR Part 173; G.S. Chaptcro 9

and 130 A, which are hereby adopted by refcreno
in accordance with G.S. 150B 1 4 (o);

(f) All permitted removals shall be conducte
under the direct supervision of an accredite

completion date s shall be submitted to supervisor. The supervisor shall be on-site at a

467

9:7

NORTH CAROLINA REGISTER

July 1, 199'

PROPOSED RULES

times when removal activities are being performed.

(g) An asbestos abatement design shall be
prepared by. an accredited abatement designer for
each individually permitted removal conducted in
public areas.

0) {h) In accordance with G.S. 130A-23, the
Program may suspend or revoke the permit for any
violation of G.S. 130A, Article 19 or any of the
rules of this Section. The Program may also
revoke the permit upon a finding that its issuance
was based upon incorrect or inadequate
information that materially affected the decision to
issue the permit.

Statutory Authority G.S. 130A-5(3); 130A-449;
P.L. 99-519.

.0606 FEES

(a) The fee required by G.S. 130A-450 shall be
submitted with an application for the asbestos
containing material removal permit. The amount
of the foe is one percent of the contract price or
twenty cents ($0.20) per s quare or linear foot,
whichever is greater. — Fees for the removal of
s urfacing materials, ceiling tiles and floor tiles,
when permitting, — s hall bo one percent of the
contract price or fifteen cents ($0.15) per s quare

foot, whichever is greater. Fees for asbestos

removal — fef — demolition — purpo s e s — shaH — be — a
maximum of throe hundred dollars ($300.00). The
fees shall be as follows:

(1) Fees for the removal of floor tiles,
when permitted, shall be one percent of
the contract price or ten cents ($0.10)
per square foot, whichever is greater;

(2) Fees for the removal of ceiling tiles
shall be one percent of the contract
price or ten cents ($0.10) per square
foot: whichever is greater;

(3) Fees for the removal of surfacing
material, thermal system insulation,
cementitious asbestos containing
materials and other asbestos containing
materials shall be one percent of the
contract price or twenty cents ($0.20)
per square or linear foot; whichever is
greater:

(4) Fees for demolition shall be a
maximum of three hundred dollars
($300.00). Demolition, for the
purposes of this Rule only, means the
act of razing a building or structure, or
portion thereof, to the ground.
Removal of regulated asbestos
containing material from any

undemolished portion of a building or
structure shall be permitted as an
individual asbestos removal; and
(5) An owner of any single family dwelling
in which the owner resides or will
reside after the asbestos removal is
complete is exempt from permit fees.
A permit shall not be issued until the required fee
is paid. However, — when — the — program — het»
determined that immediate action i s neces s ary, the
fee shall not bo required to be s ubmitted with the
application, but s hall be submitted to and received
by the Program within five working day s of
i s suance of the permit.

(b) The fee required by G.S. 130A-448 shall be
submitted with an application for accreditation or
reaccreditation. The amount of the fee shall be
one hundred dollars ($100.00) for each category,
except that the fee for persons applying for
accreditation or reaccreditation as workers shall be
twenty-five dollars ($25.00). However, if a
person applies for accreditation or reaccreditation
in more than one category per calendar year, the
amount of the fee shall be one hundred dollars
($100.00) for accreditation or reaccreditation in the
first category and seventy-five ($75.00) for
accreditation or reaccreditation in each remaining
category^ except for workers . A person shall not
be accredited or reaccredited until the required fee
is paid.

Statutory Authority G.S.
130A-450; P.L. 99-519.

.0607

130A-5(3); 130A-448;

ASBESTOS EXPOSURE STANDARD
FOR PUBLIC AREAS

(a) The maximum allowable ambient asbestos
level in the air for public areas shall be^

(1) 0.01 fibers per cubic centimeter as
analyzed by phase contrast microscopy,
or

(2) arithmetic mean of less than or equal to
70 structures per millimeter square as
analyzed by transmission electron
microscopy , or

(3) a Z-Test result that is less than or equal
to 1.65 as analyzed by transmission
electron microscopy.

(b) Ambient air sampling shall be conducted in
public areas outside the work area where permitted
asbestos removal activities arc being performed.
For permitted individual asbestos removals,
ambient air sampling shall be conducted in public
areas adjacent or connected to the asbestos
removal area. The frequency and location of the

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PROPOSED RULES

sampling shall monitor potential public asbestos
exposure and must be specified in the abatement
project monitoring plan. Initial sampling shall be
conducted on the day that regelated asbestos
containing material removal begins. The sampling
shall continue on a daily basis unless, or until, the
monitoring plan specifies differently.

(c) Clearance air sampling shall be conducted in
accordance with Paragraphs (d) and (e) of this
Rule for all permitted asbestos removal projects
conducted in public areas. Clearance levels for all
public — areas — sbaH — meet — the — requirements — of
Paragraph (a) of this Rule, air samples shall be
analyzed by:

(1) transmission electron microscopy and
comply with the levels specified under
Subparagraph (a)(2) or (a)(3) of this
Rule for individually permitted
removals that are more than 35 cubic
feet, 160 square feet or 260 linear feet
of regulated asbestos containing
material; or

(2) transmission electron microscopy or
phase contrast microscopy and comply
with the levels specified in Paragraph
(a) for all other nonscheduled asbestos
removals.

(d) Phase contrast microscopy and ef
transmission electron microscopy sampling and
analysis methods shall be conducted in accordance
with 40 CFR Part 763, Subpart E.

(e) Sample analysis for phase contrast
microscopy or transmission electron microscopy
samples shall be performed by a laboratory
meeting the requirements of PL. 99-519 and 40
CFR 763 and accompanying appendices.
Laboratories performing phase contrast microscopy
analysis pursuant to this Rule shall have a rating of
proficient by the American Industrial Hygiene
Association's Proficiency Analytical Testing
Program. Persons performing phase contrast
microscopy analysis shall have successfully
completed a NIOSH 582 or a NIOSH 582
equivalent training course. Persons performing
phase contrast microscopy analysis at the asbestos
removal location shall be proficient in the
American Industrial Hygiene Association's
Asbestos Analysts Registry Program.

(f) A final visual inspection shall be conducted
by an accredited air monitor for all permitted
asbestos removal projects conducted in public
areas. This visual inspection shall be conducted
prior to clearance air sampling. The final visual
inspection shall assure that all asbestos containing
residue. dust. and debris and asbestos

contaminated equipment has been removed.

(g) Any person performing ambient or clearance
air sampling or visual inspection during an
asbestos removal as specified under Paragraphs
(b), (c), and £Q of this Rule shall be retained by
the building owner. The accredited air monitor
shall not be employed by the contractor hired to
conduct the asbestos removal except that:

(1) this restriction in no way applies to
personal samples taken to evaluate
worker exposure as required by
Occupational Safety and Health
Administration: and
£2] this restriction shall not apply when the
contractor and air monitor have
disclosed their association to the
building owner and the building owner
a pproves this association in writing,
(h) For air sampling and visual inspections
conducted under Paragraphs (b), (c). and (f) of this
Rule, the supervising air monitor shall:

(1) Prepare, prior to the removal start date,
an abatement project monitoring plan
which takes into consideration at least
the abatement project scope of work,
building use, occupant locations and
their potential for exposure to airborne
asbestos fibers, type of asbestos
containing material, and the asbestos
abatement design, including work
practices and engineering controls. The
plan shall include air sampling
procedures, air sample locations and air
sampling frequency. This sampling
plan may be amended by the
supervising air monitor as needed:

(2) Ensure that ambient air sampling results
shall be available on-site within 48
hours of completion of sample
collection:

(3) Personally inspect any individually
permitted asbestos removal project:

(A) that exceeds 10 working days in
length, but does not exceed 30
working days, at least once: or

(B) that exceeds 30 working days in
length, at least once in the first 30
working days and at least once every
30 working days thereafter:

(4) Prepare a written, signed and dated
report documenting all site visits made
to the removal, final visual inspection,
and all ambient and clearance air
sampling conducted. This report shall
be supplied by the supervising air

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PROPOSED RULES

monitor to the building owner. The
building owner shall su pp ly a copy of
the report to the Program upon request.

Statutory Authority G.S. 130A-5(3); 130A-446;
P.L. 99-519.

.0608 TRAINING COURSE INSTRUCTOR
QUALIFICATIONS

(a) Any person seeking a pproval as an instructor
for courses covered under 40 CFR Part 763.
Subpart E* A ppendix C and Ruje .0603(a)(3) of
this Section shall meet the a pplicable requirements
listed in this Rule.

(b) All training course providers shall submit, or
cause to be submitted, to the Program the
following:

(1) a completed application on a form
provided by the Program with the
following information:

(A) name, address, and telephone number
of the applicant;

(B) name, address and telephone number
of the training provider that is
employing the a pplicant;

(2) when training course completion is a
requirement, confirmation of
completion of an a pproved training
course; the confirmation shall be in the
form of a copy of a certificate of
completion of the approved training
course or the following information: the
course title, dates of instruction, names
of instructors, name, address and
telephone number of the training
provider;

(3) when education is a requirement, a
copy of the diploma or other written
documentation;

(4) when work experience is a requirement,
documentation of relevant work history,
including employer name, address and
telephone number, positions held, dates
when positions were held, and copies of
any licenses, registrations, certifications
or accreditations that are relevant to the
subject matter to be taught; and

(5) when experience as an instructor is a
requirement, documentation of relevant
instructional experience including name
of training courses taught, topics taught
for each course, inclusive dates of each
training course, and name, address and
telephone number of each training
organization for which experience is

claimed.

(1) for the worker course: state-of-the-art
work practices;

(2) for the supervisor course:
state-of-the-art work practices, and
techniques for asbestos abatement
activities;

(3) for the inspector course: pre-inspection
planning and review of previous
inspection records, inspecting for
friable and nonfriable asbestos
containing materials and assessing the
condition of friable asbestos containing
materials, bulk sampling/documentation
of asbestos in schools, recordkeeping
and writing inspection reports;

(4) for the management planner course:
evaluation/interpretation of survey
results, hazard assessment, developing
an operations and maintenance plan,
recordkeeping for the management
planner, and assembling and submitting
the management plan;

(5) for the abatement designer course:
safety system design specifications,
designing abatement solutions,
budgeting/cost estimation. writing
abatement specifications, preparing
abatement drawings and occupied
buildings; and

(6) for the project monitor course:
asbestos abatement contracts,
specifications and drawings, response
actions and abatement practices, air
monitoring strategies, conducting visual
inspections, and recordkeeping and
report writing.

(d) Instructors for work practice topics,
hands-on exercises, workshops, or field trips
where required for courses covered under 40 CFR
Part 763. Subpart E± A ppendix C shall meet the
following requirements as applicable:

(1) For the worker initial and refresher and
the supervisor initial and refresher
courses:

(A) the a pplicant shall have successfully
completed the initial and subsequent
refresher training course requirements
for supervisor; and

(B) the applicant shall meet at least one of
the following education and asbestos
work experience combinations:

(i) If the a pplicant does not possess
either a high school diploma or

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470

PROPOSED RULES

equivalent, the applicant shall:

(I) have at

least 1440
experience in a

hours
worker or

121

supervisory capacity' in a

contained work area; and

(II) have at least 360 hours as an

instructor in an Environmental

Protection Agency-approved or

Environmental Protection

Agency state a pproved worker

course.

(ii) If the a pplicant possesses either a

high school diploma or

equivalent, the applicant shall:

(D have at least 960 hours

experience in a worker.

supervisory. or consulting

capacity in a contained work

area: or

(II) have at least 240 hours as an

instructor in an Environmental

Protection Agency-approved or

Environmental Protection

Agency state approved

asbestos worker or supervisor

course or other occupational

safety and health or

environmental courses required

to meet federal and state

regulations,

(iii) If the applicant possesses at least

an associate degree from a

regionally accredited college or

university, the a pplicant shall:

(T) have at least 480 hours

experience in a worker.

supervisory. or consulting

capacity in a contained area:

(II) have at least 120 hours as an

instructor in an Environmental

Protection Agency-approved or

Environmental Protection

Agency state approved

asbestos worker or supervisor

course or other occupational

safety and health or

environmental courses required

to meet federal and state

regulations.

For the inspector initial and refresher

courses:

(A) the applicant shall have successfully

completed the initial and subsequent

refresher training course requirements

£B)

for inspector: and

the applicant shall meet at least one of

the following education and asbestos

work experience combinations:

£i] If the a pplicant possesses either a

high school diploma or

equivalent, the a pplicant shall:

(D have documented experience-

including asbestos inspections
in at least 1.000.000 square

feet of building space in the
past three years: or
have at least 60 hours as an
instructor in an Environmental

Protection Agency-approved or

Protection

approved

or other

Environmental

Agency state

inspector course

occupational safety and health

or environmental courses

required to meet federal and

state regulations.
If the a pplicant possesses at least
an associate degree from
regionally accredited college or
university, the applicant shall:

have documented experience.

including asbestos inspections

in at least 500.000 square feet

ffll

of building space in the past
three years; or
have at least 40 hours as an
instructor in an Environmental

Protection Agency-approved or

Environmental Protection

approved

other

Agency state
inspector course or
occupational safety and health
and environmental courses

required to meet federal and

state regulations.
For the management planner initial and
refresher courses:
(A) the a pplicant shall have successfully

completed the initial and subsequent

refresher training course requirements

ffil

for management planner: and

the applicant shall meet at least one of

the following education and asbestos

ill

work experience combinations:

If the applicant possesses either a
high school diploma or
equivalent, the a pplicant shall:
(T) have documented management

planning experience showing at

471

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PROPOSED RULES

least 25 management plans or
reinspection reports written in
the past three years, or
documented experience as the
management consultant for at
least 25 asbestos projects in
the past three years, or a
combination of management
plans and projects managed: or

(II) have at least 48 hours as an

instructor in an Environmental

Protection Agency-approved or

Environmental Protection

Agency state approved

management planner course or

other occupational safety and

health or environmental

courses required to meet

federal and state regulations.

(ii) If the a pplicant possesses at least

an associate degree from a

regionally accredited college or

university, the a pplicant shall:

(D have documented management
planning experience showing at
least 12 management plans or
reinspection reports written in
the past three years, or
documented experience as the
management consultant for at
least 12 asbestos projects in
the past three years, or a
combination of management
plans and projects managed: or

(II) have at least 32 hours as an
instructor in an Environmental
Protection Agency-approved or
Environmental Protection
Agency state a pproved
management planner course or
other occupational safety and
health or environmental
courses required to meet
federal and state regulations.
(4) For the project designer initial and
refresher courses:

(A) the applicant shall have successfully
completed the initial and subsequent
refresher training course requirements
for abatement project designer: and

(B) the applicant shall meet at least one of
the following education and asbestos
work experience combinations:

Ii) If the applicant possesses either a
high school diploma or

equivalent, the a pplicant shall:

(I) have documented

asbestos
design

abatement project

experience including the design

of at least 12 asbestos projects

in the past three years: or

(II) have at least 30 hours as an

instructor in an Environmental

Protection Agency-approved or

Environmental Protection

Agency state approved

abatement project designer

course or other occupational

safety and health and

environmental courses required

to meet federal and state

regulations.

(ii) If the a pplicant possesses at least

an associate degree from a

regionally accredited college or

university, the a pplicant shall:

(I) have documented asbestos

abatement

project design
including the

experience,
design of at least six asbestos
projects in the past three years:
or
(II) have at least 20 hours as an
instructor in an Environmental
Protection Agency-approved or
Environmental Protection
Agency state a pproved abate-
ment project designer course
or other occupational safety
and health and environmental
courses required to meet feder-
al and state regulations.
(5) For the project monitor initial and
refresher courses:

(A) the a pplicant shall meet the qualifica-
tions for project designer instructor
under Subparagraph (d)(4) of this
Rule or the qualifications for supervi-
sor instructor under Subparagraph
(d)(1) of this Rule to teach the work
practice topics of asbestos abatement
contracts, specifications and drawings
or response action and abatement
practices:

(B) the applicant for work practice topics
of air monitoring strategies, conduct-
ing visual inspections, and record-
keeping and report writing shall:

£i) possess either a high school diplo-
ma or equivalent:

NORTH CAROLINA REGISTER

July 1, 1994

472

PROPOSED RULES

(ii) successfully complete a NIOSH
582 course or Program approved
equivalent. or a Program
a pproved project monitor course;
and
(iii) have documented asbestos air
monitoring experience on at least
six asbestos removals.
(6) All instructors a pproved under
Paragraph (d) of this Rule shall take a
refresher training in at least one
discipline from a training provider other
than their employer every other year.

(e) Instructors who will teach segments of
training courses covered under 40 CFR Part 763.
Subpart E± A ppendix C other than work practice
topics, hands-on exercises, workshops, or field
trips shall meet the following requirements:

(1) be actively working in the field of
expertise in which training is
conducted; and

(2) have a minimum of a high school
diploma or equivalent.

(f) Instructors for a Program a pproved NIOSH
582 or Program approved equivalent shall meet the
following requirements:

(1) have a high school diploma or

£2)

(3)

equivalent;
attend the
Occupational

National
Safety

Institute for
and Health's

NIOSH 582 training course; and
for teaching the NIOSH 7400 Method,
have at least three months work
experience as a microscopist
performing analysis using the NIOSH
7400 Method.

Statutory Authority G.S. 130A-447; P.L. 99-519.
******************

ISotice is hereby given in accordance with G.S.
150B-21.2 that EHNR - Commission for Health
Services intends to amend rules cited as 15A
NCAC20D .0234, .0243.

1 he proposed effective date of this action is
October 1, 1994.

1 he public hearing will be conducted at 1:30
p.m. on July 21, 1994 at the Archdale Building,
Ground Floor Hearing Room, 512 N. Salisbury
Street, Raleigh, N. C.

ixeason for Proposed Action: To improve the
certification criteria for laboratories analyzing
public water supplies for compliance with the Safe
Drinking Water Act.

Lsomment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to Grady L.
Balentine, Department of Justice, PO Box 629,
Raleigh, NC 27602-0629. All written comments
must be received by August 1, 1994. Persons who
wish to speak at the hearing should contact Mr.
Balentine at (919) 733-4618. Persons who call in
advance of the hearing will be given priority on
the speaker 's list. Oral presentation lengths may
be limited depending on the number of people that
wish to speak at the public hearing. Only persons
who have made comments at a public hearing or
who have submitted written comments will be
allowed to speak at the Commission meeting.
Comments made at the Commission meeting must
either clarify previous comments or proposed
changes from staff pursuant to comments made
during the public hearing process.

CHAPTER 20 - LABORATORY SERVICES

SUBCHAPTER 20D - CERTIFICATION AND
IMPROVEMENT

SECTION .0200 - LABORATORY
CERTIFICATION

.0234 CRITERIA AND PROCEDURES:
DECERTIFICATION/DENIAL/
DOWNGRADING

(a) The Department of Environment, Health,
and Natural Resources or its delegate may

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PROPOSED RULES

downgrade or deny laboratory certification if the
laboratory:

(1) Failed to train or supervise employees
in laboratory methodologies required by
15A NCAC 18C .1500;

(2) Failed to report analytical results of
performance evaluation samples or
compliance samples or maintain records
as required by this Section and the
Rules Governing Public Water Supplies
in 15A NCAC 18C .1500;

(3) Failed to maintain facilities and
equipment in accordance with the
minimum requirements of this Section;

(4) Failed to notify the certification
evaluator of major changes such as
personnel, equipment, or laboratory
location; of

(5) Violated or aided and abetted in the
violation of any provisions of the rules
of this Section ^ or

(6) Failed to correctly analyze on-site
evaluation performance samples during
the initial on-site evaluation.

(b) A downgraded laboratory with provisional
certification may continue to perform analyses.
The provisional status shall continue for at least
six months. At the end of six months the
laboratory certification shall be reinstated if the
laboratory has made corrections and is in
compliance with the minimum requirements for
certification. If no corrections have been made the
aboratory certification may be revoked.

(c) The Department of Environment, Health,
ind Natural Resources or its delegate may
decertify or deny laboratory certification when a
aboratory or its employees have done any of the
Following:

(1) Knowingly made false statements on
any documents associated with
certification;

(2) Falsified results of analyses;

(3) Submitted performance evaluation
samples used for certification
determination to another laboratory for
analysis;

(4) Failed to employ approved laboratory
methodology in the performance of the
analyses required by 15A NCAC 18C
.1500;

(5) Failed to correctly analyze performance
evaluation samples including United
States EPA water study, double blind,
blind, and on-site samples or report the
results within the specified time in

accordance with the requirements of
15A NCAC 20D .0243 and .0251;

(6) Failed to report analytical results of
performance evaluation samples or
compliance samples or maintain records
as required by this Section and the
Rules Governing Public Water Supplies
in 15 A NCAC 18C;

(7) Failed to satisfy the certification
evaluator that the laboratory has
corrected deviations identified during
the on-site visit within 30 days; or

(8) Violated or aided and abetted in the
violation of any provisions of the rules
of this Section.

(d) The Department of Environment, Health,
and Natural Resources or its delegate shall notify
a laboratory of its intent to decertify, downgrade
to provisional status or deny certification. The
notice shall be in writing and include reasons for
the decision and shall be delivered by certified
mail.

(e) This Rule shall not preclude informal
conferences concerning a decision to decertify,
downgrade to provisional status or deny
certification.

If} If a laboratory is denied initial certification
for failure to satisfy this Rule, another evaluation
shall be scheduled no less than 60 days after the
initial on-site evaluation. If the laboratory is
denied certification during the second on-site
evaluation, the laboratory shall satisfy the initial
certification criteria as stated in Rule .0232 of this
Section before another evaluation is scheduled.

(g) The Department of Environment, Health ,
and Natural Resources or its delegate may
decertify or deny laboratory certification if the
laboratory has been decertified by another
certifying agency for committing any of the items
contained in Subparagraphs (cKl)-(3) of this Rule.

Statutory Authority G.S. 130A-315.

.0243 CHEMISTRY QUALITY ASSURANCE

(a) The following general requirements for
chemistry quality assurance (QA) shall be met:

(1) All quality control information shall be
available for inspection by the
certification officer;

(2) A manual of analytical methods and the
laboratory's QA plan shall be available
to the analysts;

(3) Class S weights or higher quality
weights shall be available to make
periodic checks on the accuracy of the

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PROPOSED RULES

balances. Checks shall be within range
of the manufacturer's guidelines. A
record of these checks shall be available
for inspection. The specific checks and
their frequency are to be as prescribed
in the laboratory's QA plan or the
laboratory's operations manual. These
checks shall be performed at least once
a month;
(4) Color standards or their equivalent,
such as built-in internal standards, shall
be available to verify wavelength
settings on spectrophotometers. These
checks shall be within the
manufacturer's tolerance limits. A
record of the checks shall be available
for inspection. The specific checks and
their frequency shall be as prescribed in
the laboratory's QA plan or the
laboratory's operations manual. These
checks shall be performed at least every
six months,
(b) The laboratory shall analyze performance
samples as follows:

(1) United States Environmental Protection
Agency performance evaluation samples
shall be analyzed semi-annually.
Results shall be within control limits
established by EPA for each analyte for
which the laboratory is or wishes to be
certified.

(2) Double blind and blind samples shall be
analyzed when submitted to a certified
laboratory and results shall be within
established control limits; these data
shall be of equal weight to the EPA
performance evaluation sample data and
on site quality control sample data in
determining the laboratory's
certification status.

(3) On-site quality control samples shall be
analyzed when presented to the
laboratory by the certification evaluator
and results shall be within established
control limits. These data shall be of
equal weight to the EPA performance
evaluation sample data and the double
blind sample data in determining the
laboratory's certification status.

(4) A performance level of 75 percent s hall
be — maintained — fef — eaefe — analyte for
which a laboratory is or wishes to be
certified. — This 75 percent average shall
be calculated from the ten most recent
performance sample data points from

the ER\ water studie s , double blin ds
blind, and on s ite s ample s . In the event
the laboratory doe s not have ten data
points, the 75 pe r cent average will be
calculated on the exi s ting data points,
with a minimum of four data points
needed before a determination is made. -
A laboratory shall have correctly
analyzed two out of the last three
performance samples for each analyte
for which it is certified. In the event
that a laboratory is decertified for
failing to correctly analyze two out of
the last three performance samples, the
laboratory shall correctly analyze two
consecutive performance samples to
have their certification reinstated. The
performance samples shall be analyzed
no less than 30 days apart. A
laboratory with less than three
performance samples shall have
successfully analyzed a minimum of
two performance samples before their
certification status may be determined.

(5) Unacceptable performance on any of
the samples in Paragraph (b) of this
Rule shall be corrected and explained in
writing within 30 days and submitted to
the certification evaluator.
(c) The minimum daily quality control (QC) for
chemistry shall be as follows:

(1) Inorganic Contaminants:

(A) At the beginning of each day that
samples are to be analyzed, a standard
curve composed of at least a reagent
blank and three standards covering the
sample concentration range shall be
prepared.

(B) The laboratory shall analyze a QC
sample (EPA QC sample or
equivalent) at the beginning of the
sample run, at the end of the sample
run, and every 20 samples, with
recoveries not to exceed +_ 10 percent
of the true concentration. The source
of this QC sample shall be different
from the source used for the
calibration standards in Part (c)(1)(A)
of this Rule.

(C) The laboratory shall run an additional
standard or QC check at the
laboratory's lowest detectable limit
for the particular analyte. The
laboratory shall not report a value
lower than the lowest standard or QC

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PROPOSED RULES

check analyzed.

(D) The laboratory shall add a known
spike to a minimum of 10 percent of
the routine samples (except when the
method specifies a different
percentage, i.e. furnace methods) to
determine if the entire analytical
system is in control. The spike
concentration shall not be
substantially less than the background
concentration of the sample selected
for spiking. The spike recoveries
shall not exceed +.10 percent of the
true value.

(E) All compliance samples analyzed by
graphite furnace shall be spiked to
determine absence of matrix
interferences with recoveries +_ 10
percent of the true value of the spike
concentration.

(F) The laboratory shall run a duplicate
sample every 10 samples with
duplicate values within +_ 10 percent
of each other.

(G) Precision and accuracy data may be
computed from the analyses of check
samples of known value used
routinely in each analytical procedure.
This data shall be available for
inspection by the laboratory evaluator.

(2) Organic Contaminants:

(A) Quality control specified in the
approved methods referenced in Rule
.0241 of this Section shall be
followed.

(B) Analysis for regulated volatile organic
chemicals under 15 A NCAC 18C
.1515 shall only be conducted by
laboratories that have received
conditional approval by EPA or the
Department according to 40 C.F.R.
141.24(g)(10) and (11) which is
hereby incorporated by reference
including any subsequent amendments
and editions. A copy is available for
inspection at the Department of
Environment, Health, and Natural
Resources, Division of Laboratory
Services, 306 North Wilmington
Street, Raleigh, North Carolina.
Copies of 40 CFR 141-143 may be
obtained by contacting the EPA
Drinking Water Hotline at
800-426-4791 at no charge.

organic chemicals under 15 A NCAC
18C .1516 shall only be conducted by
laboratories approved under Part
(c)(2)(B) of this Rule. In addition to
the requirements of Part (c)(2)(B) of
this Rule, each laboratory analyzing
for EDB and DBCP shall achieve a
method detection limit for EDB and
DBCP of 0.00002 mg/1, according to
the procedures in Appendix B of 40
C.F.R. Part 136 which is hereby
incorporated by reference including
any subsequent amendments and
editions. A copy may be obtained at
no charge by contacting the
Department of Environment, Health,
and Natural Resources, Division of
Laboratory Services, 306 North
Wilmington Street, Raleigh, North
Carolina.

Statutory Authority G.S. 130A-315.

TITLE 18 - SECRETARY OF STATE

Notice is hereby given in accordance with G.S.
150B-21.2 that the N. C. Department of the Secre-
tary of State, Securities Division intends to adopt
rule cited as 18 NCAC 6 .1510.

1 he proposed effective date of this action is
October 1, 1994.

1 he public hearing will be conducted at 10:00
a.m. on July 18, 1994 at the Securities Division
Conference Room, Suite 100, 300 N. Salisbury St. ,
Raleigh, N. C. 27603.

MXeason for Proposed Action: To clarify status of
interests in limited liability companies as "securi-
ties " within the meaning of the N. C. Securities Act.

(comment Procedures: Interested persons may
present statements either orally or in writing at the
public hearing, or in writing prior to the hearing
by mail addressed to Mr. Gene Cella, Administra-
tor, Securities Division, N.C. Dept. of the Secre-
tary of State, 300 N. Salisbury St., Raleigh, N.C.
27603. For copies of any information related to
the hearing, call (919) 733-3924 or write to the
aforementioned address. The comment period will
end on August 1, 1994.

NORTH CAROLINA REGISTER

July 1, 1994

476

PROPOSED RULES

Editor's Note: This Rule was filed as a tempo-
rary rule effective May 31, 1994 for a period of
180 days or until the permanent rule becomes
effective, whichever is sooner.

CHAPTER 6 - SECURITIES DIVISION

SECTION .1500 - MISCELLANEOUS
PROVISIONS

.1510 LIMITED LIABILITY COMPANY
MEMBERSHIP INTERESTS AS
SECURITIES

(a) Membership interests, as defined in G.S.
57C- 1-03(1 5). in a limited liability company shall
be presumed to be securities within the meaning of
G.S. 78A-2(11) in either of the following circum-
stances:

where the articles of organization of the
limited liability company provide that
all members of the limited liability
company are not necessarily managers
by. virtue of their status as members; or
where all members by virtue of their
status as members are managers of the
limited liability company and the num-
ber of members is greater than 15.

(b) Among the factors that will be considered by
the Securities Division as evidence offered to rebut
or support the presumption in Paragraph (a) of this
Rule are:

whether investors retain, under the

121

141

limited liability company's operating
agreement, the right to exercise practi-
cal and actual control over the manage-
rial decisions of the enterprise:
whether the number of members of the
limited liability company is so great as
to render the managerial powers afford-
ed them by the operating agreement
insignificant and meaningless;
whether the promoter has some particu-
lar or special skill which is necessary
for the successful operation and man-
agement of the limited liability compa-
ny and, without which, the enterprise
will likely be unsuccessful; and
whether special circumstances render
meaningless the managerial powers
given by the operating agreement to the
members.

Statutory Authority G.S. 78A-2(11); 78A-49(a).

******************

liotice is hereby given in accordance with G.S.
150B-21.2 that the State Personnel Commission
intends to amend rule cited as 25 NCAC ID .2513.

1 he proposed effective date of this action is
October 1, 1994.

1 he public hearing will be conducted at 9:00
a.m. on August 11, 1994 at the State Personnel
Commission Meeting, Auditorium, Institute of
Government, Hwy. 54, 333 Knapp Building,
Chapel Hill, NC.

ixeason for Proposed Action: To prevent employ-
ee disqualification from eligibility for performance-
-based pay increases due to supervisor failure to
assign a summary performance rating.

Lsomment Procedures: Interested persons may
present statements either orally or in writing at the
Public Hearing or in writing prior to the hearing
by mail addressed to: Patsy Smith Morgan, Office
of State Personnel, 116 West Jones Street, Ra-
leigh, N. C. 27603.

tLditor's Note: This Rule was filed as a tempo-
rary rule effective July 1, 1994 for a period of
180 days or until the permanent rule becomes
effective, whichever is sooner.

CHAPTER 1 - OFFICE OF STATE
PERSONNEL

SUBCHAPTER ID - COMPENSATION

SECTION .2500 - COMPREHENSIVE
COMPENSATION SYSTEM

.2513 BASES FOR AWARDING INCREASES

(a) Each agency shall have an operative Perfor-
mance Management System which has been ap-
proved by the Office of State Personnel using the
North Carolina Performance Rating Scale. The
complete requirements for an operative perfor-
mance management system are defined in 25
NCAC 10 - Performance Management System.

(b) Eligibility for increases will be based on the
most recent work cycle completed and overall

477

9:7

NORTH CAROLINA REGISTER

July 1, 1994

PROPOSED RULES

summary rating received during the previous
12-month period.

(c) The performance management system of
each agency shall ensure that salary increases are
distributed fairly, consistent with internal equity
and with the Performance Management System.
The State Personnel Director shall rescind any
career growth recognition award or performance
bonus that does not meet the intent of the provi-
sions of the performance management rules and
require the originating agency to reconsider or
justify the increase. An increase or bonus does
not meet the intent of the provisions of the perfor-
mance management rules in the event that increas-
es or bonuses are distributed:

(1) in an arbitrary or capricious manner;

(2) in a manner that violates laws prohibit-
ing discrimination; or

(3) to managers or supervisors whose
failure to comply with the performance
management rules resulted in the loss of
an increase or a bonus by employees
under their supervision.

(d) No agency shall set limits so as to preclude
in eligible employee from receiving a career
growth recognition award, cost-of-living adjust-
nent, or performance bonus; or to initiate written
iisciplinary procedures for the purpose of preclud-
ng an eligible employee from receiving a cost-of—
iving adjustment.

(e) In any rating cycle in which an employee
subject to G.S. 126-7 who was employed on or

?efore September 1^ 1993 does not receive an

jverall summary rating m accordance with the

>erformance management system (25 NCAC IP

0300). the State Personnel Director shall assign

mch employee a rating at level three of the North
Parolina Performance Rating Scale to establish the

smplovee's eligibility for performance-based pay

ncreases. If the employee disagrees with the level

hree rating, he/she may seek review of the perfor-
nance rating through the agency's Internal Perfor-

nance Pay Dispute Resolution Procedure.

tatutory Authority G.S. 126-4; 126-7.

\:7 NORTH CAROLINA REGISTER July 1, 1994 478

RRC OBJECTIONS

The Rules Review Commission (RRC) objected to the following rules in accordance with G.S.
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d).

AGRICULTURE

Markets

2 NCAC 43L .0113 - Gate Fees

Agency Revised Rule
2 NCAC 43L .0304 - Horse Facility

Agency Revised Rule
2 NCAC 43L .0320 - Dress of Lessees

Agency Revised Rule
2 NCAC 43L .0322 - Display or Sale of Weapons

Agency Revised Rule
2 NCAC 43L .0331 - Premiums and Awards

Agency Revised Rule
2 NCAC 48 A .1702 - Noxious Weeds

Agency Revised Rule

COMMERCE
Community Assistance

4 NCAC 19L .0502 - Eligibility Requirements

Agency Revised Rule
4 NCAC 19L .0901 - Grant Agreement

Agency Revised Rule
4 NCAC 19L . 1302 - Eligibility Requirements

Agency Revised Rule

Energy

4 NCAC 12C .0007- Institutional Conservation Program
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
Coastal Management

15 A NCAC 7H .1104 - General Conditions

Agency Revised Rule

Agency Filed Rule for Codification Over RRC Objection
15A NCAC 7H .1204 - General Conditions

Agency Revised Rule

Agency Filed Rule for Codification Over RRC Objection
15A NCAC 7H . 1304 - General Conditions

Agency Revised Rule

Agency Filed Rule for Codification Over RRC Objection
15 A NCAC 7H .1404- General Conditions

Agency Revised Rule

Agency Filed Rule for Codification Over RRC Objection
15A NCAC 7H . 1504 - General Conditions

RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed

05/19/9'
05/19/9'
05/19/9'
05/19/9'
05/19/9'
05/19/9'
05/19/9'
05/19/9'
05/19/9'
05/19/9'
05/19/9'
05/19/9

RRC Objection

05/19/9'

Obj. Removed

05/19/9'

RRC Objection

05/19/9'

Obj. Removed

05/19/9'

RRC Objection

05/19/9'

Obj. Removed

05/19/9'

RRC Objection

06/16/9'

RRC Objection
RRC Objection

Eff
RRC Objection
RRC Objection

Eff.
RRC Objection
RRC Objection

Eff.
RRC Objection

05/19/9
05/19/9
07/01/9-
05/19/9
05/19/9
07/01/9-
05/19/9
05/19/9
07/0119-
05/19/9
05/19/9-
07/01/9-
05/19/9

479

9:7

NORTH CAROLINA REGISTER

July 1, 199

RRC OBJECTIONS

Agency Revised Rule

Agency Filed Rule for Codification Over RRC Objection
ISA NCAC 7H .1604- General Conditions

Agency Revised Rule

Agency Filed Rule for Codification Over RRC Objection
ISA NCAC 7H .1704- General Conditions

Agency Revised Rule

Agency Filed Rule for Codification Over RRC Objection
15 A NCAC 7H .1804- General Conditions

Agency Revised Rule

Agency Filed Rule for Codification Over RRC Objection
ISA NCAC m .1904 - General Conditions

Agency Revised Rule

Agency Filed Rule for Codification Over RRC Objection
ISA NCAC 7H .2104 - General Conditions

Agency Revised Rule

Agency Filed Rule for Codification Over RRC Objection

Departmental Rules

ISA NCAC U .0701 - Public Necessity: Health: Safety and Welfare
HUMAN RESOURCES
Children's Services

RRC Objection

OS/19194

Eff.

07/01/94

RRC Objection

OS/19194

RRC Objection

05/19/94

Eff.

07/01/94

RRC Objection

05/19/94

RRC Objection

05/19/94

Eff.

07/01/94

RRC Objection

05/19/94

RRC Objection

05/19/94

Eff

07/01/94

RRC Objection

05/19/94

RRC Objection

05/19/94

Eff.

07/01/94

RRC Objection

05/19/94

RRC Objection

05/19/94

Eff

07/01/94

RRC Objection

06/16/94

10 NCAC 41 F .0704 - Physical Facility
Agency Revised Rule

Facility Services

10 NCAC 3L .0906 - Compliance with Laws
Rule Withdrawn by Agency

INSURANCE

Agent Services Division

11 NCAC 6 A .0802 - Licensee Requirements
Rule Withdrawn by Agency

JUSTICE

Departmental Rules

12 NCAC 1 .0212 - Grievance Procedure
Agency Repealed Rule

LABOR

OSHA

13 NCAC 7 A .0707 - Kriances and Other Relief Under Section 95-1 32(a)
Agency Revised Rule

13 NCAC 7 A .0708 - \driances and Other Relief Under Section 95-1 32(b)

RRC Objection
Obj. Removed

04/21/94
04/21/94

04/21/94

05/19/94

05/19/94
05/19/94

RRC Objection 04/21/94
Obj. Removed 04/21/94
RRC Objection 04/21/94

NORTH CAROLINA REGISTER

July 1, 1994

480

RRC OBJECTIONS

Agency Revised Rule

Ob). Removed

04/21/94

13 NCAC 7 A .0709 - Modification: Revocation: and Renewal of Rules or Orders

RRC Objection

04/21/94

Agency Revised Rule

Obj. Removed

04/21/94

13 NCAC 7 A .0710 - Action on Applications

RRC Objection

04/21/94

Agency Revised Rule

Obj. Removed

04/21/94

13 NCAC 7 A .0711 - Request for Hearings on Applications

RRC Objection

04/21/94

Agency Revised Rule

Obj. Removed

04/21/94

LICENSING BOARDS AND COMMISSIONS

Chiropractic Examiners

21 NCAC 10 .0303 - Solicitation of Auto Accident Victims

Agency Withdrew Rule

05/19/94

Cosmetic Art Examiners

21 NCAC 14H .0008 - Floor Coverings

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 14H .0011 - Cleanliness of Operators

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 14H .0018 - Systems of Grading Beauty Establishments

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

Dental Examiners

21 NCAC 161 .0003 - License Void Upon Failure to Renew

RRC Objection

04/21/94

Agency Revised Rule

Obj. Removed

04/21/94

21 NCAC 16R .0002 - Approved Courses and Sponsors

RRC Objection

04/21/94

Agency Revised Rule

Obj. Removed

04/21/94

General Contractors

21 NCAC 12 .0205 - Filing Deadline/ APP Seeking Qual/Emp /Another

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

Medical Examiners

21 NCAC 32P .0001 - Name of Limited Liability Company

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 320 .0001 - Definitions

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 320 .0002 - Qualifications for License

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 320 .0003 - Temporary License

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 320 .0005 - Annual Registration

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 320 .0007 - Exemption from License

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 320 .0015 - Assumption of Professional Liability

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 320 .0017 - Disciplinary Authority

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 320 .0021 - Fees

RRC Objection

05/19/94

481 9:7 NORTH CAROLINA REGISTER

July 1, 1994

RRC OBJECTIONS

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 32Q .0101 - Definitions

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 32Q .0208 - Confidentiality

Rule Withdrawn by Agency

05/19/94

Real Estate Commission

21 NCAC 58A .1711 - Continuing Education Required of Nonresident

Licensees

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 58C .0104 - Scope: Duration and Renewal of Approval

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 58C .0105 - Withdrawal or Denial of Approval

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

27 NCAC 58C .0218 - Licensing Exam Confidentiality: School Perform. /Lie

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

11 NCAC 58C .0309 - Certification of Course Completion

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 58E .0102 - Update Course Component

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

21 NCAC 58E .0104 - Criteria for Approval of Update Course Sponsor

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

11 NCAC 58E .0203 - Application and Criteria for Original Approval

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

11 NCAC 58E .0206 - Request for Videotape

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

11 NCAC 58E .0304 - Criteria for Elective Course Approval

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

U NCAC 58E .0306 - Elective Course Instructors

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

U NCAC58E .0308 - Request for Videotape

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

11 NCAC 58E .0402 - Sponsor Eligibility

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

11 NCAC 58E . 0406 - Course Rosters, Completion Certificated and Evaluations

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

U NCAC 58E .0510 - Monitoring Attendance

RRC Objection

05/19/94

Agency Revised Rule

Obj. Removed

05/19/94

•UBLIC EDUCATION

Elementary and Secondary Education

6 NCAC 6C . 0307 - Certificate Renewal

RRC Objection

04/21/94

Agency Revised Rule

RRC Objection

04/21/94

Agency Revised Rule

Obj. Removed

05/19/94

6 NCAC 6E .0202 - Interscholastic Athletics

RRC Objection

04/21/94

Agency Revised Rule

Obj. Removed

05/19/94

tEVENUE

•ales and Use Tax

7 NCAC 7B .2608 - Plumbing: Heating: Air Cond/Bec Contractors:

Purchases

RRC Objection

05/19/94

7 NCAC 7B .2609 - Plumbing: Heating: Air Cond/Bec Contractors:

Sales

RRC Objection

05/19/94

•7 NORTH CAROLINA REGISTER

Julyl,

1994

482

RRC OBJECTIONS

17 NCAC 7B .5462 - White Goods Disposal Tax Report Form: E-500W
17 NCAC 7B .5464 - Ice Certificate Form: E-599Y

RRC Objection
RRC Objection

05/19/94
05/19/94

STATE PERSONNEL
Office of State Personnel

25 NCAC ID .2401 - Career Growth Recognition Award

Rule Withdrawn by Agency 05/19/94

25 NCAC ID .2403 - Employees Eligible/Career Growth Recognition Award RRC Objection 05/19/94

Agency Revised Rule Obj. Removed 05/19/94

25 NCAC ID . 2408 - Effective Date of Cost-of-Living Adjustment RRC Objection 05/19/94

Agency Revised Rule Obj. Removed 05/19/94

25 NCAC ID .2411 - Employees Eligible For Performance Bonus RRC Objection 05/19/94

Agency Revised Rule Obj. Removed 05/19/94

483

9:7

NORTH CAROLINA REGISTER

July 1, 1994

CONTESTED CASE DECISIONS

This Section contains the full text of some of the more significant Administrative Law Judge decisions
along with an index to all recent contested cases decisions which are filed under North Carolina 's
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698.

AGENCY

CASE
NUMBER

ALJ

DATE OF
DECISION

PUBLISHED DECISION
REGISTER CITATION

VDMINISTRATION

Vorth Carolina Council for Women

%mily Violence Prevention Services v. N.C. Council for Women

UXOHOLIC BEVERAGE CONTROL COMMISSION

Ucoholic Beverage Control Comm. v. Entertainment Group, Inc.
tayvon Stewart v. Alcoholic Beverage Control Commission
Ucoholic Beverage Control Comm. v. Branchland, Inc.
Jcoholic Beverage Control Comm. v. Peggy Sutton Walters
tussell Bernaid Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm.
ilcoholic Beverage Control Comm. v. Branchland, Inc.
Idward Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm.
tobert Kovalaskc, Nick Pikoulas, Joseph Marshburn, Evangelos Pikoulas,
d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission
Christine George Williams v. Alcoholic Beverage Control Comm.
Jcoholic Beverage Control Comm. v. Raleigh Limits, Inc.
'coholic Beverage Control Comm. v. COLAP Enterprises, Inc.
Jcoholic Beverage Control Comm. v. Ms. Lucy Jarrell Powell
Ir. & Mrs. Josh Bullock Jr. v. Alcoholic Beverage Control Comm.
rome Crawford v. Alcoholic Beverage Control Commission

OMMERCE

avings Institutions Division
imes E. Byers, et al v. Savings Institutions
ORRECTION
ivision of Prisons

ene Strader v. Department of Correction
RIME CONTROL AND PUBLIC SAFETY
Victims Compensation Commission

unes Hugh Baynes v. Crime Victims Compensation Commission
oss T. Bond v. Victims Compensation Commission
mes A. Canady v. Crime Victims Compensation Commission
Irginia Roof v. Department of Crime Control & Public Safety
aren C. Tilghman v. Crime Victims Compensation Commission
)eemary Taylor v. Crime Victims Compensation Commission
olet E. Kline v. Crime Victims Compensation Commission
mes Benton v. Crime Victims Compensation Commission
rcy Clark v. Crime Victims Compensation Commission
Richard Spencer v. Crime Victims Compensation Commission
irbara Henderson v. Crime Victims Compensation Commission
lirley Handsome v. Crime Victims Compensation Commission
rorgeann Young v. Crime Victims Compensation Commission
rwrence L. Tyson v. Crime Victims Compensation Commission
'man L. Chapman v. Crime Victims Compensation Commission
ouglas and Virginia Wilson v. Crime Victims Compensation Comm.

94 DOA 0242

West

93 COM 1622 Chess

04/13/94

93 ABC 0719

Gray

03/02/94

93 ABC 0793

Nesnow

04/11/94

93 ABC 0892

Morgan

06/03/94

93 ABC 0906

Mann

03/18/94

93 ABC 0937

Morrison

03/07/94

93 ABC 0993

Morgan

06/03/94

93 ABC 1024

West

03/03/94

93 ABC 1029

Gray

03/04/94

93 ABC 1057

Bee ton

04/21/94

93 ABC 1485

Mann

03/11/94

94 ABC 0060

Nesnow

06/07/94

94 ABC 0070

Morgan

06/06/94

94 ABC 0124

Morgan

06/06/94

94 ABC 0125

Morgan

06/06/94

03/01/94

94 DOC 0252 Morrison 03/21/94

93 CPS 0801

West

03/28/94

9:2 NCR 114

93 CPS 1104

West

04/21/94

93 CPS 1108

Gray

03/28/94

93 CPS 1347

Nesnow

03/24/94

93 CPS 1608

Reilly

05/17/94

9:6 NCR 407

93 CPS 1626

Nesnow

05/25/94

93 CPS 1670

Morgan

06/13/94

94 CPS 0034

Chess

06/14/94

94 CPS 0127

Reilly

04/19/94

94 CPS 0157

Chess

06/14/94

94 CPS 0259

Morrison

04/07/94

94 CPS 0286

Gray

04/28/94

94 CPS 0292

Reilly

04/18/94

94 CPS 0368

Gray

04/26/94

94 CPS 0415

Chess

06/02/94

94 CPS 0417

Reilly

06/07/94

NORTH CAROLINA REGISTER

July 1, 1994

484

CONTESTED CASE DECISIONS

AGENCY

CASE
NUMBER

ALJ

DATE OF
DECISION

PUBLISHED DECISION
REGISTER CITATION

Michelle L. Wilcox v. Crime Victims Compensation Commission
Michael G. Low v. Crime Victims Compensation Commission
Mary E. Haskins v. Crime Victims Compensation Commission

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES

Ron D. Graham, Suzanne C. Graham v. Robert Cobb, Mecklenburg Cty
Patricia D. Solomon v. Macon County Health Department
Brook Hollow Estates v. Environment, Health, & Natural Resources
Sam's Club #8219 v. Mecklenburg County Health Department
Eugene Crawford & Nancy P. Crawford v. Macon County Health Dept.

Coastal Management

Roger Fuller v. EHNR, Divs. of Coastal Mgmt & Environmental Mgmt
Roger Fuller v. EHNR, DivB. of Coastal Mgmt & Environmental Mgmt
Gary E. Montalbine v. Division of Coastal Management
Palcy-Midgett Partnership v. Coastal Resources Commission

Environmental Health

Jane C. CMalley, Melvin L. Cartwright v. EHNR & District Hlth Dept

Pasquotank-Perquimans-Camden-Chowan
Environment, Health, & Natural Res. v. Clark Harris Si, Jessie Lee Harris
Sidney S. Tate Jr. v. Dept. of Environment, Health, & Natural Resources
Scotland Water Co., Laurin Lakes v. Environment, Health, & Nat. Res.
Floyd Benn Williams v. Dept. of Environment, Health, & Nat. Res.

Environmental Management

David Springer v. Dept. of Environment, Health, & Natural Resources
Petroleum Installation Equipment Co., Inc. v. Env., Health & Nat. Res.
Jack Griffin v. Dept. of Environment, Health, and Natural Resources

Marine Fisheries

94 CPS 0467
94 CPS 0524
94 CPS 1406

Reilly 06/07/94

Morrison 06/13/94
Gray 03/17/94

93 EHR 1017

Bee ton

05/31/94

93 EHR 1777

West

05/23/94

94 EHR 0093

West

06/03/94

94 EHR 0329

Nesnow

06/15/94

9:7 NCR

496

94 EHR 0500

Gray

06/10/94

89 EHR 1378"* Gray 04/07/94

90 EHR 0017* Gray 04/07/94

93 EHR 1792 Nesnow 03/21/94

94 EHR 0315 Gray 06/01/94

91 EHR 0838

Becton

04/06/94

93 EHR 0924

Bee ton

03/03/94

94 EHR 0005

Reilly

05/24/94

94 EHR 0200

Nesnow

04/27/94

94 EHR 0333

Reilly

05/18/94

92 EHR 1797

Morgan

05/19/94

93 EHR 0531

Chess

03/21/94

93 EHR 1030

Bee ton

03/21/94

Robert I. Swinson, Virginia S. Swinson v. EHNR, Div/Marine Fisheries 93 EHR 0394 Gray

Solid Waste Management

Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch 93 EHR 0951

Bertie Citizens Action Coalition, Inc.; Willaid J. Oliver, Reginald Early, 93 EHR 1045

Herbert Jenkins, Jr. , Lind wood Earl Tripp, Willie Warren Tripp, Mary
Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management
Division, and East Carolina Environmental, Inc., Addington Environmental,
Inc., et al.

04/11/94

Gray 03/28/94

Morrison 04/06/94

9:3 NCR 214

HUMAN RESOURCES

Brenda C. Robinson v. Department of Human Resources
Betty Rhodes v. Department of Human Resources

Division of Child Development

Judith Fridley v. Div. of Child Development/ Abuse/Neglect Unit

DHR, Division of Child Development v. Joyce Gale

Gloria C. Haith v. Department of Human Resources

Gloria C. Haith v. Daycare Consultant

Charles E. Smith v. Department of Human Resources

Living Word Day Care, Jonathan Lankford v. Dept. of Human Resources

94 DHR 0365
94 DHR 0501

West
Morrison

06/01/94
06/02/94

93 DHR 0973

Morrison

03/08/94

93 DHR 1344

Gray

04/28/94

93 DHR 1707

Nesnow

03/22/94

93 DHR 1787

Nesnow

03/14/94

93 DHR 1797

Nesnow

03/21/94

94 DHR 0168

Nesnow

03/23/94

" Consolidated Cases.

485

9:7

NORTH CAROLINA REGISTER

July 1, 1994

CONTESTED CASE DECISIONS

AGENCY

Facility Senieei

Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v. Cert of
Need Section, Div of Facility Svcs, DHR, and Wilmington Perfusion
Corp. and Howard F. Marks, Jr., M.D.

Presbyterian-Orthopaedic Hospital v. Department of Human Resources

Judy Hobcn Wallace v. Department of Human Resources

Lowell Stafford v. Department of Human Resources

Biiiaox of Medical Assistance

JR., by and through her agent & Personal Rep., Hank Neal v. DHR

David Yott v. Department of Human Resources

Division of Medical Assistance v. Catawba Cry Dept. of Social Services

Division of Social Services

Evelyn Moore v. Department of Human Resources

Child Support Enforcement Section

William Heckstall v. Department of Human Resources

Luther Hatcher v. Department of Human Resources

Bryan Jeffrey Cole v. Department of Human Resources

Anthony E. Bullajd v. Department of Human Resources

Dexter L. Chambers v. Department of Human Resources

Ronald E. Johnson v. Department of Human Resources

Roger Moore v. Department of Human Resources

Alvin Lee Martin v. Department of Human Resources

Robert Young v. Department of Human Resources

Henry M. Dillard v. Department of Human Resources

Antonio Townsend v. Department of Human Resources

Troy E. Pinkney v. Department of Human Resources

Anthony A. Macon v. Department of Human Resources

Walter Lee Corbett v. Department of Human Resources

Joe Louis Mayo v. Department of Human Resources

Bobby Lewis Smith v. Department of Human Resources

Louis C. Cade v. Department of Human Resources

Nash Andrew Newsomc v. Department of Human Resources

James E. Watson v. Department of Human Resources

Robert Lee Barrett v. Department of Human Resources

Betty A. Williams, Fred E. Jones v. Department of Human Resources

Eric G. Sykes v. Department of Human Resources

Willie C. Hollis v. Department of Human Resources

Bernadetfc Cook v. Department of Human Resources

Lem Person v. Department of Human Resources

Randall R. Rhodes v. Department of Human Resources

Dennis W Nolan v. Department of Human Resources

Robert Calvin Connor v. Department of Human Resources

lames D. Williams v. Department of Human Resources

Vaughn D. Pearsall v. Department of Human Resources

King D. Graham v. Department of Human Resources

Sidney Ray Tuggle Jr. v. Department of Human Resources

Gregory N. Winley v. Department of Human Resources

George Aaron Collins v. Department of Human Resources

Samuel L. Dodd v. Department of Human Resources

William A. Sellers v. Department of Human Resources

Kenneth W. Cooper v. Department of Human Resources

Hades W. Norwood Jr. v. Department of Human Resources

Javid L. Terry v. Department of Human Resources

Steven A. Elmquist v. Department of Human Resources

(elvin Dean Jackson v. Department of Human Resources

Dennis E. Fountain Jr. v. Department of Human Resources

Mark E. Rogers v. Department of Human Resources

Edna %nCannon v. Department of Human Resources

)aniel Thomas Hefele v. Department of Human Resources

jilbert J. Gutierrez v. Department of Human Resources

Uton D. Johnson v. Department of Human Resources

CASE
NUMBER

AIJ

DATE OF
DECISION

93 DHR 0746 Morgan 04/11/94

93 DHR 0805
93 DHR 0935
93 DHR 1381

93 DHR 0528
93 DHR 1113
93 DHR 1778

94 DHR 0293

Reilly 03/11/94

Gray 05/23/94

Gray 04/15/94

Gray
Gray
West

Reilly

04/27/94
04/05/94
03/04/94

04/15/94

93 CSE 1077

Reilly

03/14/94

93 CSE 1082

Mann

05/24/94

93 CSE 1091

Becton

03/30/94

93 CSE 1094

Nesnow

06/13/94

93 CSE 1124

West

03/28/94

93 CSE 1 125

Becton

03/30/94

93 CSE 1127

Becton

04/14/94

93 CSE 1128

Nesnow

04/04/94

93 CSE 1133

Reilly

04/18/94

93 CSE 1135

Nesnow

06/13/94

93 CSE 1139

Becton

03/30/94

93 CSE 1148

Mann

03/29/94

93 CSE 1 149

Gray

04/26/94

93 CSE 1150

Reilly

03/30/94

93 CSE 1161

West

04/19/94

93 CSE 1 162

Nesnow

06/16/94

93 CSE 1166

Morrison

06/16/94

93 CSE 1 170

Mann

03/17/94

93 CSE 1171

Gray

04/26/94

93 CSE 1172

Morrison

04/20/94

93 CSE 1178

Nesnow

04/20/94

93 CSE 1181

Becton

04/20/94

93 CSE 1191

Becton

05/09/94

93 CSE 1202

Gray

04/27/94

93 CSE 1214

Morrison

06/16/94

93 CSE 1219

Nesnow

06/16/94

93 CSE 1254

Morrison

04/27/94

93 CSE 1258

West

04/19/94

93 CSE 1259

West

04/19/94

93 CSE 1267

Becton

04/20/94

93 CSE 1275

Becton

05/18/94

93 CSE 1307

West

04/25/94

93 CSE 1316

Becton

06/14/94

93 CSE 1331

West

04/25/94

93 CSE 1357

Gray

03/31/94

93 CSE 1359

Morrison

04/20/94

93 CSE 1364

West

04/27/94

93 CSE 1385

West

06/13/94

93 CSE 1386

Mann

05/18/94

93 CSE 1392

Reilly

04/29/94

93 CSE 1394

West

06/13/94

93 CSE 1414

Chess

05/13/94

93 CSE 1415

Mann

05/03/94

93 CSE 1417

Morrison

06/14/94

93 CSE 1432

Morrison

04/28/94

93 CSE 1433

Morrison

05/13/94

93 CSE 1434

Reilly

04/29/94

PUBLISHED DECISION
REGISTER CITATION

>:7

NORTH CAROLINA REGISTER

July 1, 1994

486

CONTESTED CASE DECISIONS

AGENCY

Chester Sanders v. Department of Human Resources
Rodney Guyton v. Department of Human Resources
Donald W. Clark v. Department of Human Resources
William E. David Jr. v. Department of Human Resources
John J. Gabriel v. Department of Human Resources
Timothy D. Evans v. Department of Human Resources
Billy Edward Smith v. Department of Human Resources
Allen D. Terrell v. Department of Human Resources
Ray C. Moses v. Department of Human Resources
Mickey Bridget! v. Department of Human Resources
Bart Ransom v. Department of Human Resources
William H. Simpson Sr. v. Department of Human Resources
James D. McClure Jr. v. Department of Human Resources
Douglas L. Cherrix v. Department of Human Resources
Dwayne Lamont Thompson v. Department of Human Resources
Horace Lee Bass v. Department of Human Resources
Michael Wilder v. Department of Human Resources
James A. Cephas v. Department of Human Resources
Mark E. Campbell v. Department of Human Resources
Barriet Easterling v. Department of Human Resources
Wade A. Burgess v. Department of Human Resources
Billy Dale Beaney v. Department of Human Resources
James E. Wiggins Sr. v. Department of Human Resources
Timothy J. Jones v. Department of Human Resources
Randall E. Hunter v. Department of Human Resources
Cyrus R. Luallen v. Department of Human Resources
Alton E. Simpson Jr. v. Department of Human Resources
Johnny T. Usher v. Department of Human Resources
Charles Darrell Matthews v. Department of Human Resources
John William \&nce Jr. v. Department of Human Resources
Brian Gilmore v. Department of Human Resources
Jesse Jeremy Bullock v. Department of Human Resources
Charles F. McKirahan Jr. v. Department of Human Resources
Benjamin J. Stroud v. Department of Human Resources
Tony A. Miles v. Department of Human Resources
Dwayne L. Allen v. Department of Human Resources
Joe C. Dean v. Department of Human Resources
Royston D. Blandfond III v. Department of Human Resources

JUSTICE

Alarm Systems Licensing Board

Alarm Systems Licensing Boaid v. George P. Baker

Private Protective Services Board

Larry C. Hopkins v. Private Protective Services Board
Stephen M. Rose v. Private Protective Services Board
Lemuel Lee Clark Jr. v. Private Protective Services Board

Training and Standards Division

Curtiss Lance Jteteat v. Criminal Justice Ed. & Training Stds. Comm.
Willie David Moore v. Criminal Justice Ed. &. Training Stds. Comm.
Glenn Travis Stout v. Criminal Justice Ed. & Training Stds. Comm.
Gregory Blake Manning v. Criminal Justice Ed. & Training Stds. Comm.

MORTUARY SCIENCE

Mortuary Science v. Perry J. Brown, & Brown's Funeral Directors

PUBLIC EDUCATION

Nancy Watson v. Boaid of Education

Janet L. Wilcox v. Carteret County Boaid of Education

CASE

DATE OF PUBLISHED DECISION

NUMBER

ALJ

DECISION REGISTER CITATION

93 CSE 1437

West

04/19/94

93 CSE 1439

West

04/21/94

93 CSE 1441

Nesnow

05/13/94

93 CSE 1442

Nesnow

05/02/94

93 CSE 1452

Chess

05/16/94

93 CSE 1460

Reilly

04/28/94

93 CSE 1461

West

04/19/94

93 CSE 1463

Nesnow

05/02/94

93 CSE 1464

Nesnow

04/28/94

93 CSE 1468

Bee ton

05/24/94

93 CSE 1495

Morrison

04/29/94

93 CSE 1497

West

04/19/94

93 CSE 1500

Bee ton

05/13/94

93 CSE 1512

Gray

05/13/94

93 CSE 1515

MorriBon

04/21/94

93 CSE 1520

Morrison

05/13/94

93 CSE 1521

Reilly

04/28/94

93 CSE 1523

Reilly

05/13/94

93 CSE 1537

Nesnow

05/19/94

93 CSE 1560

Mann

05/18/94

93 CSE 1568

Morrison

04/28/94

93 CSE 1569

Morrison

05/13/94

93 CSE 1571

Morrison

05/13/94

93 CSE 1576

West

04/19/94

93 CSE 1579

West

04/19/94

93 CSE 1583

Nesnow

06/16/94

93 CSE 1591

Bee ton

04/20/94

93 CSE 1592

Chess

05/19/94

93 CSE 1596

West

06/13/94

93 CSE 1597

Becton

05/13/94

93 CSE 1615

Chess

05/13/94

93 CSE 1632

Morrison

06/14/94

93 CSE 1640

West

06/14/94

93 CSE 1648

Becton

05/19/94

93 CSE 1654

Mann

05/24/94

93 CSE 1655

Mann

05/17/94

93 CSE 1715

Gray

05/23/94

94 CSE 0095

West

04/19/94

93 DOJ 0457

93 DOJ 1618

94 DOJ 0359
94 DOJ 0360

93 BMS 0532

93 EDC 0234
93 EDC 0451

Nesnow

Morrison

Nesnow

03/10/94

03/07/94
05/19/94
05/19/94

93 DOJ 0231

Chess

03/28/94

93 DOJ 1071

Nesnow

04/11/94

93 DOJ 1409

Gray

03/03/94

94 DOJ 0048

Gray

03/29/94

Chess

Chess
Mann

03/28/94

02/28/94
02/21/94

9:3 NCR 218

9:2 NCR 108

487

9:7

NORTH CAROLINA REGISTER

July 1, 1994

CONTESTED CASE DECISIONS

AGENCY

STATE HEALTH BENEFITS OFFICE

Linda C. Campbell v. Teacheis & St Emp Major Medical Plan
Timothy L. Coggina v. Teacheis' & St Emp Comp Major Med Plan

STATE PERSONNEL

Agricultural and Technical State University

Linda D. Williams v. Agricultural and Technical State Univeisity
Juanita D. Murphy v. Agricultural and Technical State University
Thomas M. Simpson v. Agricultural and Technical State University

Department of Agriculture

Donald H. Crawford v. Department of Agricultue

Catawba County

Sandra J. Cunningham v. Catawba County

North Carolina Central University

Ha-Yilyah Ha-She'B v. NCCU

Cherry Hospital

Charles F. Fields v. Cherry Hospital

Department of Commerce

Ruth Daniel-Perry v. Department of Commerce

Department of Correction

Leland K. Williams v. Department of Correction

Elroy Lewis v. North Central Area - Dept of Correction, Robert Lewis

Bert Eeworthy v. Department of Correction

Merron Burrus v. Department of Correction

Alfred B. Hunt v. Department of Correction

Adrian E. Graham v. Intensive Probation/Ruole

Department of Crime Control and Public Safety

Don R. Massenburg v. Department of Crime Control & Public Safety
Fred L. Kearney v. Department of Crime Control & Public Safety
Sylvia Nance v. Department of Crime Control & Public Safety

Durham County Health Department

Lylla Denell Stockton v. Durham County Health Department

Employment Security Commission of North Carolina

Rejeanne B. LeFrancois v. Employment Security Commission of N.C.

Department of Environment, Health, and Natural Resources

Division of Marine Fisheries

William D. Nicely v. Environment, Health, & Natural Resources

Department of Human Resources

Inez Latla v. Department of Human Resources

Charla S. Davis v. Department of Human Resources

Rose Mary Taylor v. Department of Human Resources, Murdoch Center

David R. Rodgers v. Jimmy Summerville, Stonewall Jackson School

CASE
NUMBER

93 INS 0410
93 INS 0929

94 OSP 0108

93 OSP 1097

93 OSP 0875

94 OSP 0498

93 OSP 0725

93 OSP 1780

93 OSP 1069

92 OSP 1454

ALJ

DATE OF
DECISION

Bee ton

Morrison

Reilly

Bee ton

Chess

Gray

West

Bee ton

04/22/94
03/04/94

93 OSP 0089

Chess

03/23/94

93 OSP 0708

Morrison

03/16/94

93 OSP 1393

Gray

03/24/94

05/23/94

04/29/94

04/13/94

Morrison 06/15/94

03/04/94

91 OSP 1287

Chess

02/22/94

92 OSP 1770

Bee ton

05/24/94

93 OSP 0711

Chess

04/21/94

93 OSP 1145

West

06/01/94

94 OSP 0243

Reilly

04/20/94

94 OSP 0261

Morrison

04/26/94

90 OSP 0239

Chess

04/28/94

91 OSP 0401

West

03/18/94

92 OSP 1463

Reilly

03/21/94

05/25/94

04/08/94

05/04/94

93 OSP 0830

Bee ton

03/28/94

93 OSP 1762

Gray

03/03/94

93 OSP 0047

Gray

05/06/94

94 OSP 0087

Chess

03/16/94

9:7

NORTH CAROLINA REGISTER

July 1, 1994

PUBLISHED DECISION
REGLSTER CITATION

9:4 NCR 292

9:3 NCR 211

9:1 NCR 63

9:6 NCR 395

9:5 NCR 333

488

CONTESTED CASE DECISIONS

AGENCY

CASE
NUMBER

ALJ

93 OSP 0728

93 OSP 1604

• Abuse Services

94 OSP 0214

Chess

Becton

ReiUy

Durham County Department of Social Services
Belinda F. Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs

Menial Health/Mental Retardation
Yvonne G. Johnson v. Blue Ridge Menial Health

Vbke County Mental Health, Developmental Disabilities, and Substance ,

Julia Morgan Brannon v. Wake County MD/DD/SAS

N.C. State University

Laura K. Reynolds v. N.C. State University - Dept. of Public Safety 92 OSP 0828 Morgan

Department of Transportation

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transportation
Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transportation
Betsy Johnston Powell v. Department of Transportation
Clyde Lem Hairston v. Department of Transportation
Henry C. Puegh v. Department of Transportation

University of North Carolina at Chapel Hill

Eric W. Browning v. UNC-Chapcl Hill

UNC Hospitals

Barry Alonzo Nichols v. UNC Hospitals Central Dist. Sect.

The WMtaier School

Dwayne R. Cooke v. The Whitaker School

STATE TREASURER

Retirement Systems Division

Molly Wiebenson v. Bd./Trustees/TeacheiB' & State Employees' Ret. Sys.
Nathan Fields v. Bd./TrusteesAeachem' & State Employees' Ret. Sys.
John C. Russell v. Bd. /Trustees/Teachers' & State Employees' Ret. Sys.
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. System
James E. Walker, Ind. &. Admin for the Estate of Sarah S. Walker v. Bd./

Trustees/N.C. Local Govt. Emp. Ret. System
Elizabeth M. Dudley v. Bd^rusteesATeacheiB' &. State Emps" Ret. Sys.
Kenneth A. Glenn v. Bd./Tru6tees/Teachem' & St Employees' Ret. Sys.
Joseph Fulton v. Bd./Trustees/Teacheis' & State Employees' Ret. Sys.

DATE OF
DECISION

04/11/94

03/18/94

04/14/94

05/26/94

PUBLISHED DECISION
REGISTER CITATION

93 OSP 0297* 1

Morrison

03/10/94

9:1 NCR

93 OSP 0500* 1

Morrison

03/10/94

9:1 NCR

93 OSP 0550

Morrison

03/28/94

93 OSP 0944

Chess

02/28/94

93 OSP 1710

Nesnow

05/24/94

93 OSP 0925

94 OSP 0509

94 OSP 0328

Morrison 05/03/94

Morrison 06/15/94

Chess

06/02/94

92 DST 0015

93 DST 0161
93 DST 0164
93 DST 0785
93 DST 1054

93 DST 1474
93 DST 1612
93 DST 1731

Morgan 05/26/94

Morrison 05/18/94

West 03/07/94

Becton 03/18/94

Becton 05/31/94

Nesnow 03/28/94

Morrison 05/18/94

Becton 05/25/94

9:5 NCR 342

9:6 NCR 403

9:1 NCR 68

9:7 NCR 490

489

9:7

NORTH CAROLINA REGISTER

July 1, 1994

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

93 DST 1054

JAMES E. WALKER, INDIVIDUALLY AND
AS ADMINISTRATOR FOR THE ESTATE
OF SARAH S. WALKER,
Petitioner,

THE BOARD OF TRUSTEES OF THE NORTH
CAROLINA LOCAL GOVERNMENT
EMPLOYEES' RETIREMENT SYSTEM,
Respondent

RECOMMENDED DECISION

This matter was heard before Brenda B. Becton, Administrative Law Judge, Office of Administrative
Hearings, on February 2, 1994 in Charlotte, North Carolina.

For Petitioner:

For Respondent:

APPEARANCES

FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUMTER, P. A., Attorneys at
Law, Charlotte, North Carolina; John W. Gresham appearing.

Alexander McC. Peters, Assistant Attorney General, N.C. Department of Justice,
Raleigh, North Carolina.

ISSUE

Whether Sarah Walker's beneficiary is entitled to an award of the Death Benefit as provided in
N.C.G.S. 128-27(1).

FINDINGS OF FACT

A. PROCEDURAL HISTORY

1. On July 12, 1993, James Walker, Petitioner (hereinafter "Petitioner") sought final agency
review of the Retirement System's (hereinafter "Respondent") decision to deny to Petitioner the death benefit
provided under N.C.G.S. 128-27(1).

2. On August 7, 1993, Petitioner, through counsel received notice of the agency's final decision,
pursuant to Rule .0401 subchapter 2A, Title 20 of the North Carolina Administrative Code that again denied
he Petitioner's appeal of the agency's earlier decision.

3. On October 4, 1993, Petitioner, through counsel filed a Petition for a Contested Case Hearing
n the Office of Administrative Hearings, pursuant to N.C.G.S. 150B-23.

4. Upon Respondent's motion, the caption in the case was amended to replace the "Department
of State Treasurer, Retirement Systems Division" with the "Board of Trustees of the North Carolina Local
Government Employees' Retirement Systems. "

9:7

NORTH CAROLINA REGISTER

July 1, 1994

490

CONTESTED CASE DECISIONS

5. A contested case hearing was held on February 2, 1994 before Judge Brenda Becton in
accordance with N.C.G.S. 150B-23(b) and the Rules of Contested Case Hearings.

6. The parties requested copies of the hearing tapes and were ordered to file their proposed
recommended decisions within 30 days of the mailing of the tapes.

B. BACKGROUND - SARAH WALKER'S EMPLOYMENT HISTORY

7. In December of 1977 Sarah Walker (hereinafter "Walker") was hired by Mecklenburg County
(hereinafter "County") as a social worker. Thirteen years later, in May of 1990, she was diagnosed with
terminal cancer. Shortly thereafter, on June 1, 1990, Walker was placed on Medical Leave with pay from
the County. Within a year she was placed on Medical Leave Without Ray, effective March 12, 1991.
(Plaintiff's Exhibit 1).

8. On May 17, 1991 Walker's husband, Petitioner James Walker (hereinafter "Petitioner"),
received a letter from Stephen Barr, Benefits Administrator for Mecklenburg County Personnel Department
(hereinafter "Barr"), summarizing benefits for Walker as a County Employee on Medical Leave and
summarizing the benefits which would be available to her if she retired.

9. Barr's letter specifically indicated that Walker's Medical Leave status could continue for one
year, after which, if she were unable to work, she would at that point be terminated from employment
(Plaintiff's Exhibit 2).

10. In addition, Barr indicated that life insurance benefits payable to Walker's beneficiary should
she die within the one year Medical Leave period would include a $20,000 Death Benefit through Retirement
Systems if her death were to occur within 180 days from the last day salary was paid, where salary "would
include pay for use of accrued benefit days." (Plaintiff's Exhibit 2 at 1).

1 1 . Barr went on to indicate that retirement status would not adversely affect payment of the
Death Benefit so long as Walker's death occurred within 180 days from the last day salary was paid: "[e]ven
if Mrs. Walker retires, should she die within 180 days of the last day for which 'salary' was paid, the $20,000
Death Benefit from the Retirement System would [still] be applicable." (Plaintiff's Exhibit 2 at 2). This
information was consistent with the handbook, Your Retirement Benefits, published by the Department of State
Treasurer, Retirement Systems Division.

12. Walker applied for disability retirement on June 17, 1991. Her application, Employer
Certified by Barr, included the following information: the effective date of retirement - August 1, 1991; the
"Last day of employment" - July 31, 1991; and the last date for which compensation would be paid - July 31,
1991. (Plaintiff's Exhibit 3).

13. Walker's Application for Disability Retirement was approved by the Medical Board on July
24, 1991, and on August 1, 1991, Walker officially retired from the County. (Plaintiff's Exhibit 4).**

14. Up until her retirement, Walker continued to receive compensation from the County for
accrued benefits. Walker received statements of earnings for periods ending March 22, 1991 and May 31,
1991, both of which reflect an accrued benefit of .23 sick days. Retirement payments were also deducted
from Walker's earnings during this period. In addition, on August 9 Walker received a check from the
County reflecting a Longevity Payment totalling $214.55 and an Accrued Benefit Payment of $6.87
representing payment for .23 sick days accumulated through July 31, 1991. This was the last payment she
received from the county. (Plaintiffs Exhibit 5).

— Sarah Walker's Application for Retirement, Respondent's Exhibit 1 , contains handwritten changes to the "last date of employment" and the "last date
compensationwillbepaid" sections. The Respondent acknowledged that these changes were made by clerical staff in the Respondent's office, but offered
no evidence regarding a basis for the changes.

491 9:7 NORTH CAROLINA REGISTER July 1, 1994

CONTESTED CASE DECISIONS

15. Petitioner was appointed Legal Guardian for his wife on October 8, 1991, and on October
18, 1991 she died. (Plaintiff's Exhibit 6).

C PETITIONER'S REQUEST FOR AND RESPONDENT'S DENIAL OF DEATH BENEFIT

Petitioner's Request for Payment

16. On October 29, 1991 Robert Gourley, attorney for Petitioner (hereinafter "Gourley"), sent
letter to Mecklenburg county requesting payment of the $20,000 Death Benefit for Walker's beneficiary,

her husband James Walker (Petitioner) .

17. On November 5, 1991, in response to Gourley's request for payment, Stephen Barr on behalf
f the county stated that he had been advised that the $20,000 Death Benefit is payable only if the employee

died "within 180 days of the last day of work". (Plaintiff's Exhibit 7, second emphasis in original). Barr went
on to define the last day of work as the last day the person was "actually on the job" which in Mrs. Walker's
;ase was June 1, 1990. Based upon this revised interpretation, Barr concluded that Walker's death occurred
utside of the 180 day period and thus the Death Benefit would not be payable. (Id.)

18. Barr's November 5, 1991 correspondence acknowledged that Walker had accrued .23 sick
lays as of the date she was placed on Medical Leave without Pay. (Id.)

19. Barr's November 5, 1991 letter directly contradicts his May 17, 1991 correspondence
ndicating that the 180 day period began from the last day for which salary (including accrued benefits) was
)aid, not the last day of work.

Respondent's Initial Asserted Grounds for Denial of Payment

20. Following a request on November 11, 1991 from Gourley for all relevant documents
ontrolling the payment of the death benefit, Timothy Bryan, Chief of the Member Services Section of
Retirement Systems Division (hereinafter "Bryan"), sent Gourley what he stated were the sections of North
Carolina General Statutes addressing eligibility for the Death Benefit payment. (Plaintiff's Ex. 9). The
pecific provision enclosed was N.C.G.S. 128-27(1) which states that the 180 day period begins from the last
lay of the employee's "actual service. "

21. Pursuant to N.C.G.S. 128-27(1), subsections (2)(a) and (2)(b), the last day of actual service
determined in one of two ways, depending on whether the employment has been terminated. If terminated,

le last day of actual service is the last day the member actually worked, (subsection (2)(a)). When
mployment has not been terminated, last day of actual service is considered to be "the date on which an
bsent member's sick and annual leave expires." (subsection (2)(b)).

22. Bryan's November 21, 1991 correspondence to Gourley did not make clear which of the
revisions, subsection (2)(a) or (2)(b), was applied by the Respondent Retirement System to Sarah Walker's
ase and resulted in Respondent's denial of the Death Benefit. (Plaintiff's Exhibit 9).

23. In a subsequent letter, Bryan reiterated that the applicable provision of the North Carolina
Jeneral Statutes is section 128-27(1). In what appears to be an attempt to clarify the 180 day calculation,
iryan stated that the effective date of Walker's Medical Leave Without Pay — March 31, 1991 — was the date
vm which the 180-day period began: "[e]ven if Mrs. Walker had remained on Leave Without Pay, her 180
ays would have expired on September 27, 1991. Due to the fact that her death occurred October 18, 1991,
le 180 days had lapsed." (Plaintiff's Exhibit 10).

24. This correspondence does not indicate why March 31, 1991 is the dispositive date and it
lakes reference neither to any termination date of Sarah Walker's employment nor to any different provision
>r determining the status of members who have taken a leave of absence.

NORTH CAROLINA REGISTER July 1, 1994 492

CONTESTED CASE DECISIONS

25. In addition, Bryan stated that since employees of Mecklenburg County Personnel Department
"are not under our administrative authority and are not agents of this department" thee Retirement Systems
Division is not responsible for the actions of employees of Mecklenburg County. (Plaintiffs Exhibit 10).

Respondent's Additional Asserted Grounds for Denial

26. Bryan's February 8, 1993 letter to John Gresham, Attorney for Petitioner, reiterated his
position that Section 128-27(1) provides for a determination of the "last day of actual service." In his
correspondence with Petitioner, Bryan raised a new argument for denying the benefit based upon a statutory
provision dealing with leaves of absence. However, the Respondent did not advance this argument at the
hearing. Bryan then determined that, since at the time of her death her employment had been terminated (he
did not indicate the date of termination), "her last day would have been the last day she actually worked,
which appears to be no later than March 12, 1991."

27. The March 12 date was not, in fact, Sarah Walker's actual last day of work, since she had
been on Medical Leave since June 1, 1990. Rather, March 12, 1991 is the date her status changed from
Medical Leave to Medical Leave Without Pay.

28. Bryan acknowledged that Ms. Walker had received payment for her accrued benefit but
concluded that the payment for .23 sick days and the longevity payment "do not reflect any additional service,
nor do they represent any service which would cause her last day of service to be within 1 80 days of her
death."

29. The statute does not require additional service, it requires that: "Where employment has not
been terminated, the date on which an absent member's sick and annual leave expire." N.C.G.S. 128

27(l)(2)(b).

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes th<
following:

CONCLUSIONS OF LAW

1. Based upon the evidence and arguments of counsel, the issue to be decided in this matter is
whether an employee who is granted a disability retirement has been "terminated" under the provisions
defining "last day of actual service" in N.C.G.S. 128-27. This issue must be determined in light of the
applicable principles governing statutory construction set out herein.

2. A statute such as N.C.G.S. 128-27 is considered a remedial statute in that it confers benefits
on a class of individuals. Burgess y Joseph Schlitz Brewing Co. . 298 N.C. 520, 259 S.E. 2d 248, 251
(1979); Hicks y. Brown Shoe Co., 306 S.E.2d 543, 545 (N.C. App. 1983) (interpretation of worker':
compensation statute in action for award of death benefit); Derebey y^ Pitt County Fire Marshall , 318 N.C.
192, 347 S.E. 2d 814, 818 (1986). A remedial statute should be construed liberally, "in a manner which
assures the beneficial goals for which it is enacted and which brings within it all cases fairly falling within
its intended scope." Burgess , 259 S.E. 2d at 251. See also Carolina Builders Corp. y. Howard- Veasev , 72
N.C.App. 224, 324 S.E.2d 626, review denied 313 N.C. 597, 330 S.E.2d 606 (1985) (definition of "owner"
in materialman's lien act, considered a remedial statute, should be broadly construed in order to advance the
legislative intent in enacting it); Newsome y. N.C. State Bd. of Elections , 105 N.C.App. 499, 415 S.E.2c
201 (1992). The Burgess court further stated:

A construction which operates to defeat or impair the object of the statute must be avoided
if that can reasonably be done without violence to the legislative language. To this end, the
words and phrases of a statute must be interpreted contextually, in a manner which
harmonizes with the other provisions of the statute and which gives effect to the reason and
purpose of the statute.

493 9:7 NORTH CAROLINA REGISTER July 1, 1994

CONTESTED CASE DECISIONS

Burgess , 259 S.E.2d at 251.

In Burgess the court stated "[amplication of the above principles leads us to conclude that the
restrictive definition of 'visually handicapped' in N.C.G.S. 111-11 should not be applied in a manner which
limits the meaning of 'visual disability' in N.C.G.S. 168-1." Id. Application of the above principles in the
Walker case indicate that the word terminate should not be construed to limit the definition of retire, especially
where such an interpretation will defeat the object of the statute itself which is to provide a benefit to those
members of the retirement system who die, as Sarah Walker did, before they have obtained the full benefit
of their years of contribution to the system.

3. In interpreting a statute, the prior interpretations, whether formal or informal, given to the
statute by an agency that executes and administers it, are not dispositive but are to be given great weight.
Sides V. Cabarrus Memorial Hospital , 287 N.C.14, 213 S.E.2d 297 (1975) (court considered letters from
various state and federal agencies holding that hospital was an agency of the county and not a separate
Municipal agency of the state). While the Retirement Systems Division asserts in this case that a disability
•etirement should be considered to have "terminated" employment so that the last day actually worked
institutes the beginning of the six-month statutory period for determining eligibility for the death benefit, the
iame agency has specifically distinguished a termination of employment from retirement in its own
Hiblications. The Division's own handbook, Your Retirement Benefits , notes that coverage of a member for
he Disability income plan will cease upon:

(1) the termination of your employment as a State teacher or State employee,

(2) your retirement under the provisions of ... the retirement system,

(3) your becoming a beneficiary under the plan, or

(4) your death.

four Retirement Benefits , p. 37 (1993)(emphasis added).

4. The agency's recognition that a "retirement" does not constitute a "termination" and is
herefore a distinct classification is consistent with the interpretation given by our state courts and courts
hroughout the country.

The North Carolina Court of Appeals recently recognized that an employee may leave his
mployment through "termination, early retirement, or other job change." Wilkens v. Wilkens . 1 1 1 N.C.App.
41, 432 S.E.2d 891, 892 (1993) (emphasis added). Likewise the insurance policies at issue in a death benefit
latter distinguished between "termination of employment" and "retirement". First National Bank y^
Jationwide Insurance Co., 303 N.C.329, 278 S.E.2d 507, 515 (1981). These cases are consistent with the

onclusion, long recognized by the courts, that unlike termination, retirement is not tantamount to a final
bandonment of the employment relationship. Le Grange v. Datsis , 142 Me. 48, 53, 46 A. 2d 408, 410
1946), and retirement is not synonymous with a dismissal or termination. Brown v. Little. Brown. & Co. .
69 Mass. 102, 168 N.E. 521 (1929) (stockbroker who was required to give up stock if he "retired" not
squired to surrender stock where he was terminated by company).

5. Moreover, as the Respondent's witnesses acknowledged, their interpretation of the statute,

'hich equated retirement with termination, would have a draconian impact on a system member who has a
>ng term illness and then takes a disability retirement. For instance, an employee who (a) used sick leave
:om July 1 until December 3 1 , (b) took retirement on December 3 1 , and (c) dies on January 1 of the next
ear would receive no death benefit even though the retirement system had received full contributions from
le employee through December 31. There is no indication that this result was intended by the legislature
hen the provisions of N.C.G.S. 128-27(1) were enacted. State Ex. ReL Com'r of Ins. v. N.C. Auto. Rate
dmin. Office. 294 N.C. 60, 241 S.E.2d 324, 329 (1978) (legislature not to be construed to obtain untoward

ssults).

:7 NORTH CAROLINA REGISTER July 1, 1994 494

CONTESTED CASE DECISIONS

6. Having concluded (a) that this statute granting benefits to retirement system members is to
be liberally construed, and (b) that both applicable case law and the agency's own interpretation recognizes
that retirement is distinct from termination, the Administrative Law Judge further concludes that for purposes
of determining Petitioner's eligibility for the death benefit, Sarah Walker was not "terminated" from her
employment. Therefore, under the provisions of subsection (2)(b) of N.C.G.S. 128-27(1), her last day of
actual service will be the date on which her sick and annual leave expired which was July 31, 1991.

7. Since Sarah Walker's death occurred well within 180 days of July 31, 1991, Petitioner is
entitled to the death benefit as permitted in N.C.G.S. 128-27(1).

RECOMMENDED DECISION

The Board of Trustees of the North Carolina Local Government Employees' Retirement System will
make the Final Decision in this contested case. It is recommended that the Commission adopt the Findings
of Fact and Conclusions of Law set forth above and award the Petitioner the Death Benefit to which he is
entitled because Sarah Walker's death occurred within the requisite 180 day period.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute
150B-36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an
opportunity to file exceptions to this recommended decision and to present written arguments to those in the
agency who will make the final decision. G.S. 150B-36(a).

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings .

The agency that will make the final decision in this contested case is the Board of Trustees of the
North Carolina Local Government Employees' Retirement System.

This the 31st day of May, 1994.

Brenda B. Beeton
Administrative Law Judge

495 9:7 NORTH CAROLINA REGISTER July 1, 1994

CONTESTED CASE DECISIONS

STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

94 EHR 0329

SAM'S CLUB #8219,
Petitioner,

MECKLENBURG COUNTY HEALTH DEPT.,
Respondent.

RECOMMENDED DECISION

This matter came on for hearing before Administrative Law Judge Dolores O. Nesnow on June 8,
1994, in Charlotte, North Carolina.

STATEMENT OF THE CASE

Petitioner received a notice of intent to suspend its permit to operate a pushcart by the Mecklenburg
bounty Health Department on February 14, 1994. That notice informed Petitioner of its appeal rights and
loted that the suspension would not go into effect if Petitioner appealed. Petitioner filed a Petition for
Contested Case hearing on March 16, 1994.

Petitioner then received an Order for Prehearing Statements and an extension on that Order,
'etitioner did not respond to either of those Orders. Petitioner received due and timely notice of hearing on
tfay 9, 1994. Petitioner did not appear at the hearing.

The undersigned requested the Respondent to determine the identity of the person who signed for the
Notice of Hearing, "H. Montgomery". In attempting to get that information, Respondent learned that the
epresentative of Sam's Club, Darrin Boatwright, was at the store and would come over to the hearing site
if requested."

The Respondent made a Motion to impose sanctions for failure to comply with Prehearing Orders.
Tie undersigned, in an effort to the hear the case on the merits, denied the Motion and requested that the
■etitioner be informed to get to the hearing immediately. Petitioner, Darrin Boatwright, Operations Manager,
ppeared at the hearing approximately 30 minutes after the phone call.

Corporate headquarters for Sam's is out of State. Darrin Boatwright is not a Corporate officer, but
the Operations Manager for Store #8219, the retail site in issue. Respondent did not object to Mr.
loatwright appearing on behalf of Sam's #8219.

For Petitioner:

For Respondent:

APPEARANCES

Darrin Boatwright, Operations Manager
Sam's Club

1801 Windsor Square Drive
Matthews, North Carolina 28105
Petitioner - Pro Se

Grady L. Balentine, Jr.
Associate Attorney General
N. C. Department of Justice
P. O. Box 629

NORTH CAROLINA REGISTER

July 1, 1994

496

CONTESTED CASE DECISIONS

Raleigh, North Carolina 27602-0629
Attorney for Respondent

ISSUE

Should the Petitioner's pushcart permit be suspended?

FINDINGS OF FACT

1. On June 25, 1993, the Mecklenburg County Health Department (MCHD) received an
application for a Pushcart Permit from Sam's #8219.

2. During the subsequent permitting process, Petitioner signed a MCHD form which reproduced
the pertinent text of the rules applicable to Pushcart Permits.

3. The Rules which were reproduced on the document noted above are the following:

"Pushcarts and mobile food units shall operate in conjunction with a permitted
restaurant and shall report at least daily to the restaurant for supplied, cleaning, and
servicing." 15A NCAC 18A .2600 (f), (emphasis added) and

"A servicing operations area must be established at a restaurant for the mobile food
unit. Potable water servicing equipment shall be installed, stored, and handled in a way that
protects the water and equipment from contamination. The mobile food unit's sewage storage
tank shall be thoroughly flushed and drained during servicing operation. All sewage shall
be discharged to an approved sewage disposal system."
15 A NCAC 18A .2640(g).

4. This form also contained a provision which stated that the document had been read and
understood. That document was signed by a Steve Leonard, as the Restaurant Operator and Jerry Stone, the
Pushcart Operator.

5. The Pushcart Permit was issued on 6/23/93 and the pushcart was placed just inside the front
doors of Sam's and was to sell hot dogs and soft drinks.

6. The pushcart was a large unit measuring approximately 4 feet by 8 feet.

7. The permit was issued on the signed agreement that the pushcart was to be transferred to its
conjunction restaurant at WalMart, which restaurant is not in the same shopping center as Sam's.

8. Susan Cole, an Environmental Health Specialist with MCHD, was the inspector assigned to
conduct the permitting process.

9. Ms. Cole did not question the distance between the locations nor the size of the pushcart since
the application was completed for this arrangement and both parties signed the document stating that they had
read, understood, and agreed, to comply with the pushcart regulations.

10. Every pushcart permitted by MCHD have to be returned each day to their sponsoring
restaurant for cleaning.

11. All pushcarts must be freestanding units and are permitted only to sell hotdogs and soft
drinks.

497 9:7 NORTH CAROLINA REGISTER July 1, 1994

CONTESTED CASE DECISIONS

12. After Ms. Cole completed the permitting process, the matter was assigned to Pamela Grubbs,
Environmental Health Specialist with MCHD, whose job it is to inspect permit sites subsequent to their
permitting.

13. Bill Hardister, the MCHD Program Chief for Food and Sanitation, supervised both Ms. Cole
and Ms. Grubbs. He saw the pushcart while shopping in the store. He noticed the permit which was posted
indicated "pushcart" but he also noticed that the unit was hardplumbed and wired. He requested that an
inspection be conducted.

14. On August 11, 1993, Ms. Grubbs visited Sam's Club and found a number of violations.

15. During that inspection, Ms. Grubbs found that the pushcart, which by regulation must be
freestanding, had been hardplumbed and was also connected to electrical wiring.

16. Ms. Grubbs also found that the pushcart employees were using the employees' breakroom
to store food and to wash equipment.

17. Ms. Grubbs completed an Inspections Report noting the violations and left a copy of it with
the Petitioner. She subsequently sent Petitioner a copy of the regulations.

18. Ms. Grubbs' second inspection was on December 16, 1993. She found that none of the
previous violations had been remedied.

19. After speaking with the Petitioner, who explained that the unit was so large they could not
readily transport it to WalMart, she suggested that they take all removable pans to WalMart each day for
cleaning as a temporary remedial measure.

20. Ms. Grubbs returned to the MCHD and discussed the problem with her supervisor, Bill
Hardister. They considered the possibility of the pushcart being permitted as a "Food Stand" or as a
"Restaurant".

21. Additional requirements would have to be met before the pushcart could qualify for either
af these permits.

22. On February 14, 1994, Ms. Grubbs made her third inspection. She again found that no
violations had been remedied. She then issued an Intent to Suspend the Permit.

23. At the time of this hearing, the pushcart is still operating in the same condition as it was
luring the last year. The Petitioner has not submitted an application for a Food Stand or Restaurant Permit.

24. Damn Boatwright, the Operations Manager, testified and it is found as feet, that the pushcart
lad units added to it which sold frozen yogurt and fountain drinks. Fountain drinks are sodas dispensed from
i unit which combines the carbonated water and the syrup just before the soda is released by the use of a pull
landle.

25. Mr. Boatwright was not present at the inspections but was present during management
neetings at which the pushcart permitting problem was discussed.

26. Mr. Boatwright testified that he was attempting to remedy the problem by complying with
he suggestions made by Ms. Grubbs. He testified that he has a three basin sink on site but not installed. He
Mtified that he knows he needs a hot water heater but that he was having problems getting all the materials
ecause the home office wanted him to use materials from their own stores. He also testified that there had
•een a truckers strike which had slowed down the delivery of the material.

NORTH CAROLINA REGISTER July 1, 1994 498

CONTESTED CASE DECISIONS

27. Mr. Boatwright testified that he runs a multi-million dollar business and does not have time
to worry about a hotdog stand.

28. Mr. Boatwright also testified that he did not respond to the Prehearing Orders because he was
very busy and did not always see his mail. He also testified that he did not initially appear at the hearing
because he did not see the Notice of Hearing.

29. Mr. Boatwright also testified that he apologizes for any oversights but that he doesn't
understand why the State is spending money on a hearing and making such a fuss over a simple hotdog stand.
He testified that he does not have time to deal with all this.

Based on the foregoing Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1. The Petitioner was aware of the regulations concerning Pushcart Permits and signed a
document of understanding. The Petitioner's signature as well as the Restaurant operator's signature appeared
on that document.

The Petitioner has been in violation of the Pushcart Permit regulations for approximately a

year.

Although Petitioner asserts that he does not have time to deal with this permit violation, it
is noted that he has gone to a great degree of bother to hardplumb the pushcart and to connect it to electricity.

Additionally, the Petitioner has bothered to adjoin a frozen yogurt unit and a soda fountain
unit.

The Respondent attempted to assist the Petitioner to come into compliance but the Petitioner
to this date had not corrected any of the violations.

2. It is concluded that Petitioner is in violation of 15A NCAC 18A .2683(f) in that the pushcart
has never reported to the restaurant for cleaning, the unit was permanently affixed to the premises so that it
could not be moved, and additional food services were added without proper permitting.

Based upon the above Conclusions of Law, the undersigned makes the following:

RECOMMENDATION

1 . That the Petitioner's permit to operate a pushcart be suspended until such time as they come
into compliance with the permitting laws and regulations.

2. That since Petitioner has shown that leniency and compliance time are not used for the
purpose for which they are intended, any future violations of the health and sanitation laws of the State of
North Carolina be handled with great dispatch and immediacy.

MEMORANDUM OF LAW

The undersigned believes that the circumstances of this case warrant a revocation of the permit rather
than merely a suspension. However, Petitioner received notice only that he was being suspended and the
Petitioner cannot be sanctioned with a sanction greater than the one for which he received notice.

The Petitioner paid very little attention to the directions of the inspector and to the laws of the State
of North Carolina. Petitioner deliberately and immediately violated the agreement which it had signed by
hardplumbing and wiring the unit and by attaching a frozen yogurt machine and a soda fountain machine.

499 9:7 NORTH CAROLINA REGISTER July 1, 1994

CONTESTED CASE DECISIONS

Because of this blatant disregard of the law, the Petitioner's permit should have been revoked and a
period of mandatory suspension imposed. The enabling legislation, much to the benefit of the Petitioner, does
not provide for such sanctions.

The undersigned further would have imposed civil penalties if the enabling legislation had a provision
for such penalties. Again, much to the benefit of Petitioner, the legislation does not provide for such
sanctions.

The undersigned considered holding the Petitioner in contempt of court for failure to respond to the
Prehearing Orders, failure to appear at the hearing, and repeated commentary during the hearing about the
annoyance of the permit requirements and of the hearing, which, it is noted, Petitioner requested.

Petitioner's representative offered an apology for any disrespect to the court or to MCHD. An
apology is not a curative recognized in the legal system and that offer has no bearing on the violation.
However, since the Petitioner appears to have made some meager attempts to come into compliance and since
this representative may not accurately reflect the opinions of the corporation, the Petitioner's representative
will not be held in contempt at this time.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative
hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute
l50B-36(b).

NOTICE

The agency making the final decision in this contested case is required to give each party an
)pportunity to file exceptions to this recommended decision and to present written arguments to those in the
igency who will make the final decision. G.S. 150B-36(a).

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to
urnish a copy to the parties' attorney of record and to the Office of Administrative Hearings .

The agency that will make the final decision in this contested case is the North Carolina Department
if Environment, Health and Natural Resources.

This the 15th day of June, 1994.

Dolores O. Nesnow
Administrative Law Judge

•7 NORTH CAROLINA REGISTER July 1, 1994 500

NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM

1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two

of these,

titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major

department in the North Carolina executive branch of government has been assigned a title number.

Titles are further broken down into chapters which shall be numerical in order. The other two,

subchapters and sections are optional subdivisions to be used by agencies when appropriate.

TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE

TITLE DEPARTMENT LICENSING BOARDS

CHAPTER

Administration

Acupuncture

Agriculture

Architecture

Auditor

Auctioneers

Commerce

Barber Examiners

Correction

Certified Public Accountant Examiners

Council of State

Chiropractic Examiners

Cultural Resources

General Contractors

Elections

Cosmetic Art Examiners

Governor

Dental Examiners

Human Resources

Dietetic s/Nutrition

Insurance

Electrical Contractors

Justice

Electrolysis

Labor

Foresters

14A

Crime Control & Public Safety

Geologists

15A

Environment, Health, and Natural

Hearing Aid Dealers and Fitters

Resources

Landscape Architects

Public Education

Landscape Contractors

Revenue

Marital and Family Therapy

Secretary of State

Medical Examiners

19A

Transportation

Midwifery Joint Committee

Treasurer

Mortuary Science

*21

Occupational Licensing Boards

Nursing

Administrative Procedures

Nursing Home Administrators

Community Colleges

Occupational Therapists

Independent Agencies

Opticians

State Personnel

Optometry

Administrative Hearings

Osteopathic Examination & Reg. (Repealed)

Pharmacy

Physical Therapy Examiners

Plumbing, Heating & Fire Sprinkler Contractors

Podiatry Examiners

Professional Counselors

Practicing Psychologists

Professional Engineers & Land Surveyors

Real Estate Appraisal Board

Real Estate Commission

Refrigeration Examiners

Sanitarian Examiners

Social Work Certification

Speech & Language Pathologists & Audiologists

Therapeutic Recreation Certification

Veterinary Medical Board

Note: Title 21 contains the chapters of the various occupational licensing boards.

501

9:7 NOR

TH CAROLINA REGISTER Jw

ty 1, 19%

CUMULATIVE INDEX

(April 1994 - March 1995)

Pages Issue

1 - 75 1 - April

76 - 122 . 2 - April

123 - 226 3 - May

227 - 305 4 - May

306 - 348 5 - June

349 - 411 6 - June

412 - 503 7 - July

Unless otherwise identified, page references in this Index are to proposed rules.

\GRICULTURE

Plant Industry, 127

COMMERCE

Alcoholic Beverage Control Commission, 423
Energy Division, 4

:rime control AND PUBLIC safety

State Highway Patrol, Division of, 243

iNVmONMENT, HEALTH, AND NATURAL RESOURCES

Coastal Management, 443

DEM/ Air Quality, 80

Departmental Rules, 254

Environmental Management, 81, 258, 352

Health Services, 323, 370, 445

Mining Commission, 442

NPDES Permit, 3, 232

Solid Waste Management, 171, 364

Water Resources, 165, 255

Wildlife Resources Commission, 38, 42, 84, 358

Wildlife Resources Commission Proclamation, 125

TNAL DECISION LETTERS

Voting Rights Act, 2, 312

JOVERNOR/LT. GOVERNOR

Executive Orders, 1, 123, 227, 306, 349, 412

lUMAN RESOURCES

Child Day Care Commission, 10

Children's Services, 136

Day Care Rules, 148

Facility Services, 4, 128, 423

Medical Assistance, 318, 440

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36, 313, 430

:7 NORTH CAROLINA REGISTER July 1, 1994 502

CUMULATIVE INDEX

Social Services, 136

Vocational Rehabilitation Services, 434

INDEPENDENT AGENCDZS

State Health Plan Purchasing Alliance Board, 99

INSURANCE

Multiple Employer Welfare Arrangements, 76
Special Services Division, 76

JUSTICE

Alarm Systems Licensing Board, 351

Criminal Justice Education and Training Standards Commission, 149

State Bureau of Investigation, 234

LABOR

Mine and Quarry Division, 239
OSHA, 77, 160
Variance, 230

LICENSING BOARDS

Acupuncture Licensing Board, 44

Chiropractic Examiners, 376

Cosmetic Art Examiners, 280

Landscape Architects, Board of, 95

Medical Examiners, 192

Nursing, Board of, 45

Optometry, Board of Examiners, 194

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96

Practicing Psychologists, Board of, 97

Professional Counselors, Board of Licensed, 50

LIST OF RULES CODIFIED

List of Rules Codified, 53, 196, 281, 378

PUBLIC EDUCATION

Elementary and Secondary Education, 375

SECRETARY OF STATE

Securities Division, 476

STATE PERSONNEL

Office of State Personnel, 477

TAX REVIEW BOARD

Orders of Tax Review, 415

TRANSPORTATION

Highways, Division of, 85

Motor Vehicles, Division of, 89, 276

503 9:7 NORTH CAROLINA REGISTER July I, 1994

NORTH CAROLINA ADMINISTRATIVE CODE

The fall publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly
with replacement pages. A one year subscription to the full publication including supplements can be
purchased for seven hundred and fifty dollars ($750. 00). Individual volumes may also be purchased with
supplement service. Renewal subscriptions for supplements to the initial publication are available at one-half
he new subscription price.

PRICE LIST FOR THE SUBSCRIPTION YEAR

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t -53
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14

15
16
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19
20
21
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25
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34
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Full Code

1 1-38

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14A 1-11

15A 1-2
15A 3-6
15A 7
15A 8-9
15A 10

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90.00

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ABC) 45.00

90.00

60.00

30.00

60.00

10.00

>r 45.00

30.00

90.00

45.00

30.00

60.00

45.00

75.00

90.00

30.00

60.00

45.00

90.00

30.00

45.00

:) 90.00

45.00

30.00

45.00

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19A

11-18 EHNR 90.00
19 - 26 EHNR

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7-11 Revenue 60.00
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1 - 6 Transportation 90.00
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1-16 Licensing Boards 75.00
17-37 Licensing Boards 75.00
38 - 70 Licensing Boards
1 - 2 Administrative Procedures 75.00
1 - 3 Community Colleges 10.00
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1 State Personnel 60.00
1 - 4 Administrative Hearings 10.00

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